The earnest manner in which counsel for the plaintiff herein presented her application for rehearing prompted the court to reopen this case for argument and give it further consideration. After going over the record again in connection with the many points urged by counsel, a majority of the court have concluded that we should abide by our original opinion and decree and submit our reasons as follows:
One of the grounds of alleged error in that opinion is that as the death of plaintiff's daughter is admitted to have *Page 160 come about as a result of the operation of an agency or instrumentality in the hands of the employee and agent of the defendant Horecky, the doctrine of res ipsa loquitur applied, and we should have declared the said defendant's responsibility as a consequence. The case of Gomer v. Anding (La.App.) 146 So. 704, is cited as authority on this point. In that case, this court attempted to state what it understood to be the meaning and import of that doctrine. There was no explanation given as to how the accident had happened, and the attending circumstances were of themselves sufficient to justify an implication or inference of negligence or fault on the part of the defendant. From the fact that the agency or instrumentality which caused the plaintiff's injury was under the control and management of the defendant, and the happening was such as does not usually occur when due care has been exercised, we held the defendant to the duty of explaining, under the doctrine as announced. The defendant, having been unable to give any explanation whatever, we then applied the rule and held him liable. But in this case, explanations as to how the accident happened were offered, and the surrounding facts and circumstances of themselves were not sufficient to raise the presumption of negligence or fault on the part of the driver of the truck. The defendant did produce evidence to show how the accident had happened, and the court did not have to rely on the fact of an unexplained happening. We remain convinced that the doctrine of res ipsa loquitur does not apply.
Another alleged error is that defendant's liability should be presumed from the fact that Roy Malbrough, the employee who was driving the truck at the time of the accident, had no license as chauffeur or operator, as required by Act No. 21 of 1932, title 1, § 1, par. (x), and title 6, § 12, pars. (a) and (e).
The meaning of the term "chauffeur," as used in the act, is explained in title 6, § 12, par. (e). It is thereby limited to those employed primarily and principally in the use or operation of motor vehicles on the streets, public roads, highways, and bridges of this state. We quote therefrom as follows: "The provisions and requirements of this section of this Act, Title VI, Section 12, paragraphs (a), (b), (c), (d) shall apply to every individual, whether an exclusive and personal chauffeur or other person, who is employed, primarily and principally in the use or operation of a motor vehicle upon the streets, public roads, highways or bridges in this State, whether used or operated as or by a motor carrier or not and the performance of other duties or services when not so engaged shall not preclude the application hereof."
In order to create the status of chauffeur under the act, the statute requires employment as stated. Malbrough was not so employed. His only employment at the time in question was to unload freight in defendant Horecky's warehouse, and in doing warehouse work exclusively. On the occasion of this accident, he had worked in the warehouse until dinner time. Seeing one of the defendant's trucks standing near by, he got into it without saying anything to anybody, and started driving himself home to dinner, and on his way, and before reaching there, the accident happened. He was not hired to drive the truck, was paid nothing for driving it, and a chauffeur's license was not necessary to enable him to drive home to dinner.
It is stated in the original opinion that plaintiff's daughter was killed as a result of the fracture of her skull on the back of her head. It is now claimed that our statement to that effect is erroneous, and that the evidence shows that the injury which she received was on the top of the head. We are referred to the testimony of Dr. Bailey on this point.
Dr. Bailey at first said that plaintiff's daughter had been struck on the top of the head, but he was then asked: "Q. What portion of the skull would you call that? A. The dome of the skull, a little back of the center." This answer by him leaves the matter of the precise place of the injury somewhat in doubt, as far as his testimony is concerned. He did not see the injured girl but once; he saw that the injury was to the skull, a little back of the center of the dome, and, when called on to testify some eight months later, answers as we have quoted him.
On this point, we took as a fact the positive statement of the plaintiff herself, as appears from her answer to the question: "Q. Where was she struck? A. On the back of the head."
The plaintiff doubtless looked closely to see where her daughter was hurt. When she says that the injury was on the back of the head, she refers to that part of the head which is commonly spoken of as *Page 161 such. We accepted her statement in that regard as true, and claim that it was not error to accept as true, on this point, a fact testified to by the plaintiff herself.
Our opinion further states (162 So. 89, 95): "If the truck struck her on the back of the head, her back was toward it when struck, but we are satisfied that she ran toward the truck. By running into it face forward, the impact of the forward moving truck knocked her backward toward the side of the road from whence she had run, and the back of her head struck the gravel, causing the injury which resulted in her death five or six hours afterwards."
It is now claimed that this statement is an erroneous conclusion from the undisputed facts, and it is argued that if the girl had been struck face forward her face would have received and shown marks of injury; that the only injury found was on the top of her head; that defendants do not contend that the injury to the head was caused otherwise than by contact with some part of the trailer; that it was the theory of defendants, in the examination of witnesses, that Regina backed into the moving truck and was struck in the back of her head by the moving truck.
Children, playing the game of tag, run after getting tagged. To run fast, one must run face forward. To run backward, the child necessarily moves slower and gets caught. On this point, the testimony of Roy Malbrough, the driver, is: "I blew my horn; they were looking behind and the one that got hit, just hit on the other and started running right across the road and turned her back on the truck." The testimony of Freddie Benoit, quoted at length in the original opinion, strongly corroborates this statement. It is unnecessary for us to repeat here what he said.
Emma Meche says that the girl Regina was standing still with her back to the truck when struck. But to show that value of her evidence, we quote her further.
"Q. At the time Regina was struck where was the other little girl? A. She was with us.
"Q. Who did she go to? A. Anna was holding her and she told us to wait for her and we told her, yes, and she tagged her and run.
"Q. Where did she run? A. She just stayed on the side and she turned her head and then the truck bumped her."
We understand her to mean by this, that Regina, after tagging Anna, ran in some direction, turned her head, and as she did so the truck bumped her. But when asked, "where did she run?" she contradicts herself by saying that "she just stayed on the side of the road" and turned her head.
Mr. Harmon, the chief of police, states that Emma Meche was included among those he interviewed after the accident, and that she told him, as did the others, that the injured girl had "tagged and ran across the road."
Voorhies Nero, 15 years old, who was called as a witness by the plaintiff, testified that he was standing on the opposite side of the street, but was looking at the accident when it happened. He appears to be as reliable as Emma Meche, and he stated definitely that Regina was not only running when she was struck, but that she ran as if she wanted to run into the truck; that the driver jerked and missed her, and she ran into the back of the truck; the truck at that time being nearly in the middle of the road. He says that she was not looking where she was going; that she had her head turned from the middle of the road. We gather from his testimony that she was running forward with her head so turned that she was looking behind her. If all of this testimony is to be believed, the case has been properly decided.
We agree with plaintiff that if Regina's face struck against the truck, there should in all probability have resulted some mark or injury on her face; but on the other hand, if the back of her head was struck by the truck, it seems equally as plausible that the blow would have thrown her face downward on the gravel, and she would have shown marks on her face just the same.
Another alleged error is that the opinion fails to refer to that part of the testimony of Mr. Harmon in which he said that he had examined the truck and found a spot of blood about the size of a finger nail on the sill of the axle at the rear end of the trailer. A witness who had measured its height testified that this sill was 3 1/3 feet above the ground. In the absence of any explanation on the subject, we take it that this sill does not rest on the axle, but is above it, and supports the frame on which rests the body of the vehicle, leaving the axle free to revolve. As for the blood spot, in the absence of explanation *Page 162 to the contrary, we take it that it was on the inside face of the sill, and less than 3 1/3 feet above the ground.
It is contended that this blood spot on the sill represents the place where the injured girl's head struck. The blood spot was considered in acting on the appeal, but it did not seem to us to prove anything against the defendants. It does not establish as a fact that the girl's head struck that particular spot; the blood could have flown there as a result of an impact elsewhere. But this only leads us into speculation and suppositions, and these do not relieve the negligence of Regina, old cnough to be charged with the duty of observing ordinary and due care; nor does it establish the negligence of the driver of the truck, or that he had the last clear chance to avoid what took place and did not avail himself of it. The decided preponderance of the evidence is that Regina was running toward the front of the truck which swerved and missed her, and that she kept on running, looking behind, until she impacted with the rear end of the trailer, and was thereby knocked to the ground. It is stated on rehearing that the trailer was 40 feet long, but the note of testimony contains an admission that the truck and semitrailer combined was between 20 and 22 feet in length. It follows from this that the girl could not have run but a very few feet after the front end of the truck had swerved to miss her, and as the end of the trailer came forward, with her running toward it, it may be safely inferred that the impact was almost instantaneous.
It is claimed that error exists in the opinion because the negligence of Malbrough, the truck driver, appears under the facts stated in the opinion itself. We differ with counsel as to this matter, and hold otherwise.
Numerous cases are cited in which it was held that a person driving an automobile, who upon seeing children of tender years standing or playing on a road or street, was negligent for not stopping and taking every possible care, and this because of a child's well-known impulsive habit in suddenly jumping up and running, without appreciating danger. We do not consider our opinion as in the least departing from the principle on which those decisions are based. The difference is that the girl in this case was old enough to appreciate danger and to understand the ordinary care that should be observed from traffic on the road. She must be charged with having seen what she was bound to see if she was the least bit observant, and bound to know the danger of suddenly thrusting herself in the path of an on-coming automobile right at hand. The driver's conduct in cases like this must be judged according to how close he was to the children when they commenced to play, and the time and opportunity he had to appreciate the danger resulting from their actions. We have carefully reviewed the case on this most important point, and again conclude that the unfortunate girl's action was so sudden and unexpected that the accident was unavoidable. Under our finding of facts, we do not think that the doctrine of last clear chance, as invoked by the plaintiff, applies.
Satisfied that the case was correctly decided in the lower court and on the original hearing in this court, our original judgment is hereby reinstated and made final.