Fogleman v. Interurban Transp. Co.

187 So. 73, 192 La. 115, 1939 La. LEXIS 1064

• Court: Supreme Court of Louisiana
• Decided: February 6, 1939
• Docket: No. 35052.
• Status: Published

Opinions

FOURNET, Justice.

This is an action to recover damages from the defendant, Interurban Transportation Company, Inc., in the sum of $30,000 for personal injuries and resulting physical disability sustained by the plaintiff, Mrs. Ethel Burroughs Fogleman, when a large passenger bus, owned and operated by the defendant company, in an attempt to pass the Plymouth coupe in which plaintiff was riding as a guest collided with the coupe, and also to recover the further sum of $575 for medical and hospital expenses incurred as a result of said injury.

Defendant, in its answer, admitted the collision and the plaintiff’s injury, but denied liability therefor or that the driver of the bus was guilty of any negligence in the operation of its bus and specially set out in detail the manner in which the accident happened.

The case was tried on the issues as thus made up, and the trial judge, in a well considered opinion, concluded “ * * * that the bus driver, thinking he'had safely passed the automobile in which plaintiff was riding, turned back too quickly across the road in order to get back on the right * * * and in doing so struck plaintiff’s car * * and for the resulting injuries to plaintiff .awarded her damages in the sum of $4,700.

The defendant appealed from the judgment of the lower court and the plaintiff, answering the appeal, asked that the judgment be increased to $6,800.

The Court of Appeal for the First Circuit annulled the judgment and dismissed plaintiff’s suit (182 So. 335), whereupon she applied to this court for a writ of certiorari to review the adverse judgment, alleging that the Court of Appeal had ignored pertinent statutory law regulating traffic on public highways and had misapplied the law of negligence in arriving at its conclusion, and had also, without reason, disregárded her testimony and that of her witnesses when it was corroborated in many respects by the defendant’s own evidence. We granted the writ and the case is now before us for consideration.

The undisputed facts of the case are that on May 27, 1937 plaintiff was traveling as a guest in a Plymouth coupe driven by Miss Edith Durbin and owned by Mr. James Ipes, who was sitting between the two, in a northerly direction along Highway No. 165, between the city of Lake Charles and the city of Alexandria, at a point about seven miles from the city of Oakdale, when one of defendant’s regular passenger buses, traveling in the same direction, in an attempt to pass the coupe, collided with the same, causing it to leave the concrete portion of the highway and to strike a stump in the ditch, throwing plaintiff out of the car and overturning on her, and a.s a result of which she suffered injuries, enumerated in her petition as consisting of a crushed chest, the fracture of eleven ribs, a mangled wrist and ankle, severe lacerations, general contusions, and brush burns over the remainder of the body, causing excruciating pain and disabling her so that she is unable to do any work to support herself and her two minor dependent children.

The record further shows that the accident occurred at about 5 o’clock in the afternoon on a bright day and that the road, at that point, is level, straight, and unobstructed.

It is plaintiff’s contention that the bus driver attempted to pass the coupe at an excessive rate of speed, without giving timely warning of its approach, and without taking proper precaution to safely pass or to avoid coming into collision with the coupe. ■

On the other hand we have the defendant’s version of the accident which, in its answer, is stated to be that the proximate cause of the accident was the negligence or carelessnéss of the driver of the coupe in which plaintiff was a guest in that after the driver of the bus blew his horn, indicating his intention to pass the coupe, the driver of the coupe turned too far to the right of the road, causing the coupe to leave the concrete slightly and that in an effort to right the car swerved too. far to. the left, striking the defendant’s bus on its; right side and causing the car to leave the-highway and to eventually overturn several times.

At the time of the occurrence of the accident in the instant case, the law governing the use of the public roads, highways, and bridges of this state was embraced in Act 21 of the Legislature of the State of Louisiana for the year 1932, in which we find, under the general title Rules of the Road, the following:

Rule 4(c)3 (Rate and Speed of Certain Vehicles) :

“It shall be unlawful to operate any motor vehicle engaged in this State in the business of transporting passengers for compensation, charge or hire, on any public road, highway or bridge, between cities, towns and villages at a rate of speed in ■excess of forty-five (45) miles per hour."

Rule 7 (Overtaking Motor Vehicle) :

“(a) The driver of any vehicle overtaking another vehicle proceeding in the .same direction shall pass at a safe distance to the left thereof and shall not again drive to the right side of the highway until safely clear of such overtaken vehicle.

“(b) The driver of an overtaking' vehicle shall give audible and sufficient warning of his intentions before overtaking, passing or attempting to pass a vehicle proceeding in the same direction.

“(c) The driver of a vehicle shall not drive to the left side of the center line of the highway in overtaking and passing another vehicle traveling in the same direction, Unless such left side is clearly visible and free from oncoming traffic for a sufficient distance ahead to permit such ■overtaking and passing to be made in perfect safety; provided, that whenever an accident occurs under such circumstances, the responsibility therefor shall rest prima facie upon the driver of the vehicle doing the overtaking or passing.

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“(f) The driver of a vehicle upon the public roads, highways or bridges of this State, who has been given adequate warning by an overtaking and passing vehicle, .approaching from the rear shall promptly give way to his right in favor of such overtaking. and passing vehicle, and shall not •increase the speed of his vehicle until it

has completely overtaken and passed by the overtaking and passing vehicle; provided, however, that nothing herein shall mitigate against the provisions for prima facie responsibility provided for in this rule.” (Italics ours.)

These provisions are identical with those ^ found in Act No. 286 of 1938, which expressly repealed Act 21 of 1932, with the exception that the rate of speed provided for in Rule 4(c)3 of Act 21 of 1932 was increased from 45 miles an hour to 50 miles an hour.

As stated by Babbitt in his work entitled Motor Vehicle Law: “Every experienced driver knows of the dangers involved in passing another vehicle going in the same direction, especially in the usual case where the leading vehicle is not at the extreme right of the road. * * * The driver should wait till he sees a clear, straight piece of road ahead, blow his horn to warn the other vehicle, and pass ahead, taking care not to crowd the other vehicle as he turns back to the right of the road. He must in all cases use proper judgment and care and is liable for any negligence causing injury, especially if he runs into the other vehicle from behind. [Section 614.] It is negligence, and sometimes wanton or gross negligence, for a driver, in overtaking and passing another vehicle, to cut in close to the front of the latter." [Section 616.] (Italics and brackets ours.)

The author states further that: “As a general rule, the driver of an automobile owes the driver of a car in his rear no duty except to use the road in the usual way, and may assume that there is no other automobile in the rear, or that such automobile will not interfere with his free use of the road. The leading car has the superior right on the highway, although the driver thereof is always bound to exercise ordinary care, and under some circumstances he may be required to slow down, or stop, or refrain from increasing his speed, in order to let the following car pass. But he is not liable for not hearing the horn, where in fact he has not heard it.” (Section 621.) See, also, 29 Corpus Juris 654, 655; Hackett v. Alamito Sanitary Dairy Co., 90 Neb. 200, 133 N.W. 227, 41 L.R.A., N.S., 340, 341, Ann.Cas.l913A, 829; Huddy’s Cyclopedia of Automobile Law, Volumes 3 and 4, 9th ed., Sections 121, 128; 2 Blashfield’s Cyclopedia of Automobile Law and Practice, Permanent Edition, § 931; and Loprestie v. Roy Motors, Inc., 191 La. 239, 185 So. 11.

In the instant case, according to the testimony of the plaintiff and the two other occupants of the coupe, Miss Durbin and Mr. Ipes, at the time of the accident, the coupe was being operated in a careful and prudent manner at a rate of between 30 and 40 miles an hour. They further stated that if any warning was given by the defendant bus of its attempt to pass, they did not hear it, the approach of the bus being first discovered by plaintiff, who immediately called it to the attention of the driver. The driver of the coupe promptly moved to the right side of the road to clear the way to the left for the overtaking and passing bus, and almost immediately thereafter the bus,- which was then being driven at a very rapid and excessive rate of speed estimated to be between 55 and 60 miles per hour, struck the coupe, causing it to immediately leave the pavement, turn over several times, and eventually land in the ditch.

The testimony of Homer Perkins, who, at the time of the accident, was driving a log truck to Oakdale along the highway, directly behind the bus and the coupe, fully corroborates plaintiff’s version of the accident as above stated. He said that it appeared to him the bus, in attempting to pass the coupe, cut back too quickly to the right side of the road and struck the coupe.

The Court of Appeal gave no credence to the testimony of the three occupants of the coupe, assigning as its reasons therefor that it was “far from being satisfactory,” and, speaking of plaintiff’s testimony, said that it was “very indefinite and evasive,” and, further, that it was in “apparent conflict” with the testimony given by Mr. Ipes and Miss Durbin. On the other hand, the court expressed the opinion that the testimony of defendant’s witnesses was “fair and unprejudiced in any degree,” and stated further that “Taking it at its full value, we can not but feel that it gives weight to the defendant’s contention as to how the accident happened and certainly it tends to disprove the plaintiff’s theory.” (Italics ours.) [182 So. 338.]

A review of the testimony reveals that only one of defendant’s witnesses supports defendant’s version of the accident as stated in its answer, that of Mrs. Mimms, a farmer’s wife and passenger on the bus, who, after stating that she was seated in .the first seat on the right side, described the accident as follows: “When he [bus driver] started to pass the car [coupe] was on the right side of the black line, the car then pulled out on to the shoulder slightly and then cut back on to the road, and at that time pulled too far in and hit the bus.” (Brackets ours.) Frank Casteix, who occupied the second seat behind the driver on the left side of the bus, testified that at the time of the accident the bus was traveling at a rate of about 40 miles per hour, that the bus had completely passed the coupe, which, according to the testimony of all of the witnesses was traveling between 30 and 40 miles per hour, when seemingly the driver of the coupe, in attempting to overtake and pass the bus again, hit the bus. J. A. McKenzie, the driver of the bus, in a measure corroborating the testimony of Casteix, gave his version of the accident as follows : “After I had blown my horn about three times I started by, but I would say my bus was half way past the car, I had already picked up speed, because when you pull to the right that is the only thing to do. I picked up speed and blew again and they pulled over a little further to the right. I went ahead to the left hand side of the road just as close as I could get to the side of the road, and I was past the car and seemingly they caught up with me and hit me just a little past the center of the bus. They crossed the black line and hit the bus.” (Italics ours.) Another passenger, Mrs. Cecilia Dufour, an employee of the Fire Adjustment Bureau of Lake Charles, who sat in the third seat on the right side of the bus, in answer to the question whether the bus sounded its horn before attempting to pass the coupe, said: “Yes. * * * The bus driver blew his horn and I looked ahead and the bus began to pass and it seemed like we were going to be safe, and I looked to the side,” and in answer to the question “And then what happened ?” stated further: “My eyes fell to the side again and I noticed the top of the car a* little and then I heard this scraping to the side of the bus and I looked quickly to.the side and the car ran off to the shoulder of the road wobbly like like no one had any control over it and it sort of turned around facing the pavement and turned over three times. On the first time I saw Mrs. Fogleman [plaintiff] go out of the window head first and the car turned over on her.” (Brackets ours.) In describing the blow caused by the collision, Mrs. Dufour stated it was “Just a scrape on the side of the bus. * * * It didn’t move the bus at all.” (Italics ours.) Another passenger, Mrs. Reiszner, who stated she was sitting behind the driver on the left side, in describing the accident, said: “Well when the bus went around the car it passed it, I believe, I hadn't noticed whether it was all the way past it, and I was sitting over looking out the window opposite the bus driver and I was noticing how far to the side of the road the bus has to go to be able to pass a car, and just about the time the bus had gotten, I don’t know how far, from the car, I heard this screeching sound and T Ucrned around and the car was turning over.” (Italics ours.)

Thus it may be seen that the testimony of these several -witnesses offered by the defendant to overcome the theory of the accident as testified to by plaintiff’s witnesses, is not only in conflict with that given by Mrs. Mimms, but, with the ex-' ception of the testimony of Casteix and the bus driver, conflicts one with the other.

This court said in the case of Fridge v. Talbert, et al., 180 La. 937, 158 So. 209, 212, that “Where witnesses differ, the court should reconcile, if possible, the apparent contradictions their testimony presents. If this cannot be done, then the probabilities or improbabilities of their respective statements must be considered in the light of their capacity, opportunity or incentive for observation, the amount of corroboration, if any, and the degree of proof required,” and in the case of Miller v. Hartford Live Stock Ins. Co., 165 La. 777, 784, 116 So. 182, 185, “Courts are slow * * * to impute perjury to an apparently credible witness. They prefer to accept his testimony as true, rather than the testimony of opposing witnesses, who may have erred in their recollections.” In the case of Fridge v. Talbert, supra, this court further said “The testimony of a witness which is corroborated by admitted or established facts must prevail necessarily over that which is inconsistent with those facts.” (Italics ours.)

The foregoing are well recognized rules of law applicable to all cases requiring an analysis of conflicting testimony which, when applied in this case, conclusively show that the version of the accident, as given by plaintiff’s witnesses, is, as found by the trial judge, “clear, logical, and worthy of belief,” and, in our opinion, is corroborated by the physical facts, and, in all material aspects, by each of the several witnesses of defendant who were present at the scene of the accident. That portion of their testimony that appears to be irreconcilable is of little, if any, probative value when considered in the light of the capacity, opportunity, and incentive for observation of each of these witnesses.

The driver of the coupe, Miss Durbin, stated that upon being apprised by the plaintiff of the approach of the bus, she immediately moved to the right of the road. That she did just that is testified to by all of the witnesses who saw the accident, those of the defendant as well as those of the plaintiff. She then testified that the coupe was struck by the bus almost immediately thereafter. This is in complete accord with the testimony of the other two occupants of the coupe- and in harmony with the testimony of the driver and passengers of the bus, as may be seen from the following excerpts:

From the testimony of Mrs. Reiszner: “ * * * just about the time the bus had gotten, I don’t know how far, from the car, I heard this screeching sound and I turned around and the car was turning-over.”

From the testimony of Mrs. Dufour: “The bus driver blew his horn and I looked ahead and the bus began to pass and it. seemed like we were going to be safe, and I looked to the side * * * and I noticed the top of the car a little and then I heard this scraping to the side of the bus * * * the car ran off to the shoulder of the road * * * and it sort of turned around facing the pavement and turned over three times.” (Italics ours.)

From the testimony of Mrs. Mimms, in answer to the question “What happened to the coupe after it hit the bus?”: “The impact seemed to throw it off the'road and it turned over several times.”

The testimony of Casteix is to the effect, that it seemed as though the bus had completely passed the coupe and that ’it (the coupe) speeded up in an attempt to pass the bus again and hit it. We think the following excerpt from his testimony shows that what really directed his attention to the accident was when he “ * * heard a screeching on the side of the bus * * * ”' and he then “ * * * look-, ed back to where the noise came from and saw the coupe turned over.”

McKenzie’s version of the accident is in accord with that given by Casteix, but when asked whether or not he could tell what happened after he felt the impact of the collision, he stated: “I could not * * * I heard the screeching of the tires and I saw the dust settle.” (Italics ours.)

Thus it may be seen that in all material aspects the apparent conflicts and contradictions between the testimony of plaintiff’s and defendant’s witnesses are reconcilable and completely support the testimony of Homer Perkins, who the Court of Appeal refused to believe, although they stated that his testimony “Is the only direct evidence in the record tending to bear out the plaintiff’s contention as to the actual manner in which the accident took place * * being of the opinion that “ * * * his actions were not those of the normal individual who finds himself in the midst of such a scene * *

Referring to Perkins’ testimony, we find that, after stating the manner in which the accident occurred, he further testified that he brought his truck to a stop at a point past where the bus had stopped and walked toward the place where the injured persons were, accompanied by the man who was with him by the name of John Carpenter, but that when he saw the injured were being placed on the bus and taken care of, he, being in a hurry to get to Oakdale in time to collect money due him for hauling, as it was near closing time and otherwise he would have to wait until the next pay day, rushed back to his truck and on to town. We find nothing in his actions that can be said to be unreasonable or incredible. The mere fact that he was not noticed by the witnesses for the defendant does not mean that he was not there. That might be explained by the fact that their attention was focused on the injured parties. No motive was assigned for his giving false testimony in this case. It could have been easily ascertained whether or not he was on the road at about that time by merely checking his statements. Then, too, he stated that he was accompanied at the time by a man named John Carpenter, for whose appearance as a witness plaintiff had issued' a summons. On application for rehearing in the Court of Appeal, it was shown that the witness John Carpenter was accessible and according to his affidavit attached to plaintiff’s application for rehearing, if called upon and present, his testimony would be identical to that offered by the witness Perkins. We think that if the Court of Appeal was in doubt as to whether or not the witness Perkins was actually present at the scene of the accident as he testified, in the interest of justice, a rehearing should have been granted and the case remanded to the lower court to establish the true situation. Paul Klopstock & Co. v. United Fruit Co., 171 La. 296, 131 So. 25; Gleason & McManus v. Sheriff, 20 La.Ann. 266; State ex rel. Nelson v. Police Jury, 32 La.Ann. 884; State ex rel. Ranger v. City of New Orleans, 34 La.Ann. 202; Code of Practice, Article 906; Wicker v. Metropolitan Life Insurance Co., La.App., 172 So. 879; Gerth’s Realty Experts v. Kracke, 156 La. 36, 100 So. 41; Parker v. Ricks, 114 La. 942, 38 So. 687; Hill, McLean & Co. v. Miller, 7 La.Ann. 621; Succession of Robinson, 186 La. 389, 172 So. 429; A. & J. Inc. v. Southern Cities Distributing Co., 173 La. 1051, 139 So. 477.

But according to the facts as we find them to be, it is unnecessary to remand the case. Our views are fortified by the physical facts, for it is shown that Miss Durbin, who was recalled to the witness stand after much testimony had been adduced by the defendant to show that there were skid marks caused by the coupe at the point where the accident took place and which were described by the witnesses as running in a northerly direction beginning at a point on the left side of the center black line of the road and extending from there to a point across the black line where the coupe made a sudden turn to the ,right, stated that when her attention was called to the approaching bus she immediately “ * * * applied my [the] brakes and pulled over to the right.” (Brackets ours.) These black marks, left by the imprint of burnt rubber from the tires on the wheels of the coupe, which, as found by the trial judge and by the Court of Appeal, could only have resulted from the application of the brakes, speak for themselves, and, in our opinion, are not only direct corroboration of Miss Durbin’s statement of the facts in the case, but are a complete refutation of the theory of the accident as advanced by the defendant. It would have been a physical impossibility for the coupe, after having gotten off the pavement to the right side and cut back to the left, striking the bus on its right side near the center, to have reached a point on the left hand side of the black center line of the road and gained such a position as to leave the skid marks described by the several witnesses.

It is our conclusion that the overwhelming preponderance of the evidence shows that the proximate cause of the accident and the resulting injuries was the careless and negligent manner in which defendant’s driver passed the coupe in which the plaintiff was a guest and the defendant is, therefore, liable for the damages suffered by her as a result thereof.

We now pass to plaintiff's claim to have the amount of the judgment increased from $4,700 to $6,800, as prayed for in her answer to the appeal.

The trial judge, in his written reasons for judgment stated: “It is conclusively shown that plaintiff suffered a lacerated lip, which had a one inch laceration through the lip requiring three sutures, and which healed but left a permanent scar. The right side of the chest was caved in and the left side pushed out by a crushing injury which fractured the second, third, fourth, fifth, and sixth ribs on the right hand side of the chest, and the second, third, fourth, fifth, sixth, and seventh ribs on the left hand side. There was also a fracture of the collar bone in the middle and the fragments were misplaced. There was a fracture of the left wrist, known as a colles fracture, which involves the ends of the radius, and a compound dislocation of the right ankle without a fracture, but with the end of the fibula protruding through a laceration in the leg, and the ligaments, muscles and blood vessels of the ankle and leg being torn. The plaintiff was in the hospital a month and four days, and of course the ■ fractured bones were placed in plaster casts and treated. The plaintiff suffered excruciating pain and still suffers excruciating pain, however her physician testifies that she will recover with practically no permanent injury except a deformity on the clavicle or collar bone, and the permanent scar on the lip,” and allowed “For the pain and physical suffering which plaintiff has undergone and the injuries * * * $3,500.00. For the scar and permanent deformity of the collar bone * * * $1,000.00,” and for medical fees, $200. (Italics ours.)

The only testimony in the record in support of plaintiff’s claim for medical expenses was given by Dr. Heath, who stated that the bill had been rendered both to the plaintiff and to. the defendant bus company, but that though he did not remember the exact amount it was in excess of $300. The judge allowed only $200 without explanation.

The testimony is convincing that there is no reasonable certainty as to how soon plaintiff will recover from her injuries, many of which are very serious and, as a result of which, she was still suffering excruciating pain on the day of the trial of the case. The fact that plaintiff relies on her manual labor for her support and that of'her two children, convinces us that the award of the trial judge was not sufficient compensatory damages, particularly when we consider that she was about 33 years of age at the time of the trial, that she has no feeling in her lips, ankle, or feet, and that she still suffers from severe pains in her chest and back, and that it will be difficult to state how soon she will recover sufficiently to undertake a resumption of her physical task as wash woman from which she earned an average of $40 per month. We therefore conclude that under the facts and circumstances of this case plaintiff is clearly entitled to the amount asked by her in answer to the appeal.

For the reasons assigned, the judgment of the Court of Appeal is annulled, and that of the trial judge is amended by increasing the amount of the award to the plaintiff from $4,700 to $6,800, and, as thus amended, the judgment of the lower court is affirmed; all costs to be paid by the defendant.