Leteff v. People's Ice Fuel Co., Inc.

LE BLANC, Judge. This is a suit for damages for personal injuries arising out of a collision between a motorcycle and an automobile, which occurred at the corner where Iberville street joins Government street in the city of Baton Rouge, about midday on February 1, 1932. Irvin Leteff, nineteen year old son of Joseph Frank Leteff, who prosecutes the suit in his behalf and for his use and benefit, was temporarily employed as delivery boy at Pace’s Drug Store, located on Government street. He used a motorcycle to make his deliveries. On the day of the accident, he was traveling east, on his motorcycle, on Government street, and, as he reached the corner at Iberville street, he ran into a F'ord coupS being driven by G. Romano who was attempting to make a left-hand turn from Iberville into Government street. Alleging that the Ford coupS was suddenly brought to a stop after having started to cut the corner, and blocked his pathway, Leteff’s father charges in his petition that the injuries suffered by his son were caused by the gross negligence and carelessness of Romano, who, at the time, was acting in the scope of his employment by the People’s Ice & Fuel Company, Inc., owner of the automobile, and that both he and his employer are responsible for the damages sustained. Alleging further that the New Amsterdam Casualty Company of Baltimore, Md., had insured the automobile involved in the accident under a property damage and public liability policy of insurance, plaintiff made that company party defendant also and prayed for judgment against it in solido with the other defendants. 1-Ie avers that his son suffered a broken leg, an injury to his right hip, and severe injuries and bruises to the head as well as deep gashes in his right leg. He avers that on account of his son’s said injuries he has incurred hospital and medical expenses amounting to the sum of $309.15. For these and for the alleged permanent disability of his son arising from a broken leg, which he assesses at $7,500, and for the pain and suffering and mental anguish which his son endured, valued at $2,000, he asks for judgment in the full sum of $9,809.15. There were various exceptions filed by the defendants, all of them being overruled in the lower court. We find no mention or reference made to them in this court and they have not been considered. The defendants for answer to the petition, deny the negligence charged against the driver of the Ford coupé, claiming that he had pre-empted the intersection and therefore had the right to proceed on his course. As an alternative, they pleaded that even though he be held negligent, that young Leteff was also negligent in operating his motorcycle at forty-five miles an hour, in violation of the city speed ordinance, and, therefore, his contributory negligence bars his recovery. The district judge rendered judgment in ■favor of plaintiff and against all three defendants, in solido, in the sum of $3,309.15, and they have all appealed. Plaintiff has answered the appeal asking for an increase to the amount originally demanded. We find but little difficulty in concluding from the testimony - that Romano, the driver of the Ford eoupé, was guilty of negligence. Government street in Baton Rouge is shown to be a right of way street. Young Leteff therefore was on the favored street. Romano was not only bn the less favored *233 street, but be was engaged, at tbe time of tbe accident, in performing'wbat is generally considered a dangerous feat in driving at one of our busy city street corners. That is, be was in tbe act of making a left band turn from tbe less favored street into tbe more favored one on wbieb traffic was running both ways. In this connection it may be pertinent to remark bere, too, that tbe less favored street on wbieb be was does not run across Government street but comes to a stop where it enters it, and it was necessary, in order for bim to proceed, to turn either to tbe right or left. Romano and bis brother, who was bis guest in tbe coupé, both say that on reaching tbe corner be came to a complete stop; that they both looked east and west for traffic, and as they saw none be proceeded to make tbe turn. As be went on, Romano, the driver, says that he looked to tbe west again, saw young Leteff coming at a rapid rate of speed and be stopped again. He had not quite reached tbe street car tracks in tbe middle of Government street when be stopped, and it is shown that the distance from tbe south rail of tbe track to tbe south curb of Government street is fifteen feet. There were automobiles parked along tbe south curbing of Government street and there was one coming from the east on the north side of Government, so it is easy to visualize bow Romano blocked the pathway on tbe south side of the street, on which Leteff was traveling, and bow he was bound to have run into tbe Ford coupS if be kept on going. It appears to us that if both these parties looked to tbe west, as they say they did after stopping at tbe corner, and there was nothing to obstruct their view, one says for a whole block and the other says for two blocks, then they were bound to have seen young Leteff coming toward them in Government street. That is where be was at that very moment and they could not help but see bim. If they saw bim, it was Romano’s duty to remain stopped at that corner as be says be was when looking, before attempting to make that turn. If they looked and did not see Leteff, it is the same as if they bad'not looked at all and the law bolds tbe driver of tbe automobile to tbe same responsibility. It is our conviction that either one of two things happened. Romano was “cutting tbe corner” as tbe expression is frequently used and be did not look, or, if be looked, be thought that be had time to cut ahead of bim, realized too late that be could not, came to a dead stop, and blocked tbe street in such way that Leteff bad to run into bim as be says be had to on account of the condition existing at tbe moment and which we have already described. In either event, be was grossly negligent and should be held liable for tbe accident unless it has been shown that Leteff, by bis own negligence contributed thereto. Tbe theory on which this young man is sought to be held guilty of contributory negligence is that be was in view of the driver of tbe automobile which bad already pre-empted tbe intersection and instead of having bis motorcycle under control, continued driving at an excessive rate of speed alleged to have been forty-five miles an hour. ' As we have already endeavored to point out, this is not tbe usual intersectional automobile accident. It is one in which a driver is shown to be attempting to make a left-hand turn into a right of way street on which traffic was running both ways, and if, as Romano says, he stopped when he came to the corner, Leteff had the right to expect that he would remain in that position of safety until he had passed. Romano was negligent not only in not remaining in that position, but in starting on and coming again to another complete stop. If he had pre¡-empted the intersection as is claimed for him, his real negligence consisted in not maintaining this advantage but in coming to a second abrupt stop in the middle of the driveway. Therefore, the only way in which Leteff could, in our opinion, have been negligent was if he was speeding as the defendants contend he was. On the question of his speed, we believe that the testimony again favors young Leteff. .He says that he had slowed down in the block immediately west of Iberville street, to permit a truck that was crossing Government street to pass in front of him. The driver of that truck, a negro by the name of Davis, corroborates him on this point. Davis’ testimony is questioned on the ground that it is not shown that the day on which he says this happened is known by him to have been the same day on which the accident occurred, hut all the facts and circumstances tend to prove that it was the very same day. Besides, two other witnesses, one a young lady by the name of Muriel Martin and the other a young man named Shevelin, both saw Leteff in the same block between South 13th and Iberville streets, and both testify that his speed was about twenty or twenty-five miles an hour. The testimony of Miss Martin is to the effect that she was on Government street, going south, about the middle of the block between South 13th and Iberville when Leteff slowed down and allowed her to cross Government street ahead of him. She is well acquainted with Leteff and says that they greeted each other as they met in the street. If Leteff had already slowed down to permit the truck to pass and again reduced his speed to allow Miss Martin who was on foot to pass in front of him, it is difficult to conceive how he could have been going at an excessive speed. These facts give weight to his estimate of his speed which he places at from fifteen to twenty miles per hour. The two Romanos say that he was going fast, the de *234 fendant estimating Iiis speed at forty-five to fifty miles an hour. Another witness named Hansen says that he would judge it was about forty-five miles. This last witness was not in a very favorable position to judge the speed of the motorcycle and as a matter of fact bases the estimate he makes, not on having seen the motorcycle going át that rate as he saw it when it was only three feet from the Ford eoupé, but on the noise created by the impact and the fact that Leteff, after falling off his motorcycle, rolled several feet eastward in Government street. It becomes apparent, upon reading this witness’ testimony, that his estimate of forty-five miles is purely a surmise on his imrt with nothing whatever to support it. The testimony of both Romanos on this point is not worthy of more consideration. In the first place, from their position in the Ford coupé, looking at the motorcycle coming toward them, it was almost impossible for them to judge with any degree of accuracy the speed at which it was coming. In the second place, they both say that they did not see the motorcycle at all when they stopped the first time and G. Romano, the driver, only saw it when he looked down the street the second time when it was almost upon him. His brother says that he did not see it until just about the time it hit the coupé. We cannot therefore place much confidence in their estimate as to the rate of speed at which Leteff was traveling. We find that the preponderance of the evidence shows that the motorcycle was going at about twenty miles an hour when the collision occurred, which, under the circumstances presented, we do not think was excessive. His speed cannot, in our opinion, be said to have contributed to the accident for which we find Romano alone to blame, and for which he was held responsible and his codefendants liable with him by the district judge. We have no doubt but that young Leteff was seriously injured as a result of this accident, but we are not persuaded from the testimony of the doctors that he is permanently disabled from having had a leg broken. His claim for permanent disability, it will be recalled, constitutes his largest item of damage. There is a stipulation at the end of the transcript of testimony to the effect that at the time of the trial of his case he was again working for the same drug store, at reduced wages, and that he rode a bicycle instead of a motorcycle. At the most therefore, there would be, if any, only partial disability, with probabilities, as we read the evidence of an entire recovery in the course of a few months. There is a possibility in this connection, however, of his having to submit to some major operation. The trial judge evidently took this into consideration together with the pain and suffering which this young man endured in fixing the amount of damages allowed by him. We believe the award is entirely fair to all parties concerned and we will not disturb it in any way. For the foregoing reasons, the judgment appealed from is affirmed, appellants to pay all costs.