Sistrunk v. Aetna Casualty & Surety Co.

267 So. 2d 784
CourtLouisiana Court of Appeal
DecidedSeptember 12, 1972
DocketNo. 11910
StatusPublished
Cited by3 cases

This text of 267 So. 2d 784 (Sistrunk v. Aetna Casualty & Surety Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sistrunk v. Aetna Casualty & Surety Co., 267 So. 2d 784 (La. Ct. App. 1972).

Opinion

AYRES, Judge.

This is an action in tort wherein plaintiffs, husband and wife, seek to recover damages, she for personal injuries, permanent disability, loss or impairment of eyesight, pain and suffering, and he for reimbursement of hospital and medical expenses incurred and to be incurred in the treatment of his wife’s injuries which were sustained in an accident on April 12, 1971, on the premises and at the residence of defendant’s assured, Mrs. Donnell Bell, on Susan Street in the City of Mansfield.

Made defendant is The Aetna Casualty and Surety Company, insurer of both the Sistrunk Chevrolet Impala and of the Bell “98” Oldsmobile.

[786]*786Mrs. Sistrunk sustained the injuries aforesaid when, at the instance of Mrs. Bell, seated in the driver’s seat of the Sis-trunk car, she, Mrs. Sistrunk, reached inside the car through an open door and released the emergency brake. Through Mrs. Bell’s alleged negligence, the car moved backward, and the open door dragged or knocked Mrs. Sistrunk to the paved driveway.

Negligence charged to Mrs. Bell consists of her failure to keep and maintain a lookout or to keep the automobile under control in a parked position or to maintain her foot on the brakes, or to take any action with respect to the operation of the car to prevent it from rolling backward while Mrs. Sistrunk was in a position of peril.

The defeñse is a denial of negligence on the part of Mrs. Bell and the assertion of negligence on the part of Mrs. Sistrunk as the sole cause or, in the alternative, a contributing cause of the accident. Negligence charged included the releasing of the emergency brake knowing that the left door was open and in a position to strike her, and knowing that the automobile was parked on an incline with its motor running ready in reverse gear to roll backward upon release of the brake. It is additionally contended that Mrs. Sistrunk assumed the risk of injury and failed to take any precaution for her own safety.

The trial court concluded that the accident was caused by the combined and concurring negligence of both Mrs. Sistrunk and Mrs. Bell and thus that Mrs. Sistrunk was guilty of contributory negligence which barred her from the recovery of damages.

From a judgment accordingly rejecting plaintiffs’ demands, they appealed.

No substantial dispute exists as to the occurrence of the accident, nor as to the pertinent facts immediately preceding and following its occurrence. The Sistrunks were invited by the Bells to' the latters’ home as social guests; in fact, Mrs. Bell was Mrs. Sistrunk’s niece. On reaching the Bell residence, Mr. Sistrunk parked the Chevrolet Impala on the driveway behind the Bell’s Oldsmobile parked in the carport. The driveway was on a decline to the street level. On parking the car, Sis-trunk placed the gear of his car in a parked position and, moreover, applied the emergency brake.

Soon after the Sistrunks entered the Bell residence, Mrs. Bell announced a trip to a grocery for bread and soft drinks and invited Mrs. Sistrunk to accompany her, whereupon Mr. Sistrunk explained that his car blocked the Bell automobile and handed his car keys to Mrs. Bell, suggesting that she drive his car. Mrs. Bell explained that she had rather go in her own car. This required the removal of the Sistrunk car. Thereupon, Mrs. Bell entered and seated herself in the driver’s seat of the Sistrunk car, after which she started the motor with the gearshift lever in “Park,” but shifted to reverse. The car, however, could not be moved either forward or backward inasmuch as Mrs. Bell could not release the emergency brake.

Mrs. Bell, after several unsuccessful attempts to release the emergency brake, opened the car door and informed Mrs. Sistrunk of her failure or inability to do so. In that connection Mrs. Sistrunk testified that Mrs. Bell said to her, “I can’t release this emergency brake. You are going to have to come release it for me.” She stated she replied, “Just a minute and I’ll release it for you.” That she made the latter statement was denied by Mrs. Bell, who testified that Mrs. Sistrunk answered her by saying, “Just a minute. We might have to get Monroe [Mrs. Sistrunk’s husband].”

Mrs, Bell’s testimony is to the effect that the actions of Mrs. Sistrunk in reaching into the automobile and releasing the brake were so quickly done, without warning, notice, or knowledge on her part, that she (Mrs. Bell) was without time or op[787]*787portunity to do anything to prevent just what occurred in that instance. Defendant characterized Mrs. Sistrunk’s actions as foolhardy in reaching inside the car and releasing the brake, knowing that the motor was running, without first having ascertained that the car was not in reverse gear.

The record does not support these contentions. Upon Mrs. Bell’s call, Mrs. Sis-trunk took time to place “on the concrete,” to the left and about three feet from the front end of the car, the empty bottles and the purse of Mrs. Bell which she was carrying. Thereafter she walked to the left door of the car, several steps away, and opened the door which had been closed but not latched. She then reached inside the car and down to the lever which controlled the emergency brake. On the first or second pull, the brake released. Mrs. Bell had in the meantime reshifted to the reverse gear. When the brake was released the car lurched or “shot” backward, the open door knocking and dragging Mrs. Sistrunk down to the concrete driveway. Her right side, head, and shoulder struck the concrete surface. The left front wheel ran backward over Mrs. Sistrunk’s left foot and leg. The car continued its backward movement down the decline, across the street and onto the driveway of a neighbor.

Mrs. Bell testified, “If I had known she [Mrs. Sistrunk] was going to pull the brake I would have put it in ‘Park’.” There is no question but that Mrs. Bell had ample time and opportunity to place the car in “Park” by the simple process of flipping the lever to its proper position which, at most, would have required only an instant. Her statement, therefore, that she had no time to think is not in accord even with her own testimony to the effect, as noted above, that after her call to Mrs. Sistrunk, Mrs. Sistrunk took the time to lay down the objects held in her hands and walk to the left door of the car. All the things done by Mrs. Sistrunk did not happen in an instant but required an appreciable length of time.

The record, moreover, establishes beyond any peradventure of doubt that Mrs. Bell knew, or had reason to know, and should have known, that Mrs. Sistrunk approached the car for the very purpose of releasing the brake. In this regard Mrs. Sistrunk testified, as aforesaid, that Mrs. Bell called her and stated, “You are going to have to come release the brake for me.” Mrs. Bell herself testified that after she opened the car door, she called to Mrs. Sistrunk saying, “I can’t release it. It’s stuck or I just can’t release it. It just won’t come loose,” to all of which, she stated, as already noted, Mrs. Sistrunk replied, “Just a minute,” which clearly implied that Mrs. Sistrunk would attempt to release the brake for Mrs. Bell. Mrs. Bell nevertheless testified that she knew of no other reason or purpose why Mrs. Sis-trunk came to the car except to release the brake.

In addition to Mrs. Bell’s failure to place the gearshift in “Park,” which would have prevented the movement of the car upon release of the brake, she failed to- apply the foot brakes which were shown without question to have been in excellent condition.

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Bluebook (online)
267 So. 2d 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sistrunk-v-aetna-casualty-surety-co-lactapp-1972.