Busch v. Scimeca

LECHE, J. The claim in this suit is for damages alleged to be due to the minor daughter of the plaintiff, as the result of injuries inflicted upon her person when struck by an automobile driven by the minor son of defendant. The District Judge rendered judgment in favor of plaintiff in the sum of Seven hundred fifty dollars for injury to the daughter and rejected plaintiff’s personal claim for damages for loss of time and expenses. Plaintiff has appealed and defendant, in answer to the appeal, prays that the judgment be reversed. It is undisputed that defendant’s son was driving an automobile which came in collision with Miss Rhea Busch, daughter of plaintiff, aged about fourteen years, on the continuation of North Street, near the eastern limit of the City of Baton Rouge, where the continuation of said street is known as the Greenwell Springs road. That the. accident happened in daylight, about 6 o’clock in the afternoon of July 10, 1926, and that Miss Busch was painfully injured and was slightly disfigured by blemishes to her face, resulting from small cuts and bruises. It is also undisputed that Miss Busch, in company with her brother and Mrs. A. A. Randolph was about to cross the street or road at a point near the street car line which extends across that street or road, when she stopped on the south side of the street on or near a bridge which spans the gutter, in order to make some alteration in her personal appearance. Miss Busch says she stopped to wipe off an excess of powder on her face, but the occupants of defendant’s automobile say that she stooped down as if to tie her shoe or pull up her stocking. Mrs. Randolph and young Busch kept on going north across the street and while Miss Busch had thus stopped, or after she had started to cross the street to rejoin her companions, an automobile driven by defendant’s son, aged about sixteen years, appeared on the road going in a westerly direction, towards the" City of Baton Rouge, and it collided with Miss Busch, inflicting the injury for which compensatory damages are herein sued for. All the testimony which has any bearing upon the question of negligence, is very conflicting. Defendant’s contention, which is supported by testimony, is that Miss Busch was stooping down when the automobile approached the point where she wished to cross the street, that she raised her head and then started across without looking. That it was impossible to stop the automobile in time to avoid striking her, that the boy chauffeur first thinking that he could pass to the right of her position, steered to the right, that the young lady kept on advancing, and as he steered to the left, she hesitated and started back, and was struck by his left front fender. The contention of the plaintiff, also supported by testimony, is that Miss Busch was standing near the bridge on the edge [456] of the street, that the boy driving the automobile was laughing and talking to his companions, and did not look where he was going, and deliberately steered his car to the left side of the road where Miss Busch was standing, struck her and ran over her. The speed at which the defendant’s automobile was being driven, as in most cases of this kind, at best, is mere guess work. According to plaintiff’s witnesses it was very fast and according to defendant’s witnesses it was very slow. It may be that plaintiff’s witnesses are more worthy of belief, but on the other hand, considering the natural proclivity of human nature, and the ordinary rules by which men are guided, and using that as a standard, one is inclined to believe that the version of the accident advanced by defendant is more likely and probable, and if that version be accepted, then .Miss Busch violated the well known rule “to stop, look and listen,” before crossing a highway on which there is constant automobile traffic. It is almost incredible that defendant’s son either purposely or maliciously steered his automobile to the left in order to run into and strike Miss Busch. To justify a court of justice in accepting this as a proved fact, the evidence should be of a convincing nature. Plaintiff has not proved his case with certainty and by a preponderance of evidence. His demand should be rejected, and it is so ordered.