After reconsidering this controversy, we are still of the opinion that the action of Dr. Little in proceeding across Main street, a superior or right of way thoroughfare, without previously causing a complete stopping of his machine as required by the municipal ordinance, constituted gross negligence on his part. However, it is now our conclusion with reference to the speed of the truck operated by decedent Foy, and this is different from the one heretofore entertained, that such was not excessive under the prevailing circumstances and conditions.
As stated in the original opinion, there existed no effective ordinance fixing the speed limit for motor vehicles within the corporate limits of the town of Winnsboro; and the question of whether or not the rate enjoyed by the truck was illegal is to be determined by the provisions of Rule 4(a) of Title 2, Section 3 of Act 21 of 1932, which we therein quoted.
Various estimates on the speed of the truck as it approached the intersection, ranging upward from 25 miles per hour, were furnished by the numerous witnesses testifying. A preponderance of the evidence, which includes the testimony of several disinterested witnesses, warrants a finding, and we so hold, that the correct rate was approximately 40 miles per hour.
Foy was driving at the time on the right side of an 18-foot dry concrete street that was free of curves for a considerable distance. It was about dusk and the headlights on his machine shone brightly. Clear weather prevailed. No vehicular traffic, other than the truck and the Little car, occupied either street in the vicinity of the intersection, which was near the eastern limits of the municipality; and pedestrians were not then visiting that locality. By ordinance, Main street, on which Foy traveled, is designated as superior, from a right of way standpoint, to that of Pine street; and vehicles are directed to effect a complete stop previous to entering it. According to the proof in the record, houses, fences, trees and hedges stood back of and close to the sidewalk on the northwest corner of the intersection; but these did not prevent Dr. Little and Foy from seeing each other when the former reached the north edge of the concrete intersection, as is shown by Dr. Little's testimony and by the fact that Foy began the sounding of his horn approximately 112 feet from the point of contact.
A 40-mile an hour speed, under the circumstances and conditions above recounted, and particularly in view of the right of way status of Main street, was not, we think, excessive and in violation of the above mentioned statutory provision. Lending support to this conclusion is the decision in the case of Carkuff v. Geophysical Service, Inc., et al., La.App., 179 So. 490.
Neither do we find that Foy was otherwise guilty of negligence that contributed to or proximately caused the collision. On the Little car's appearance at the intersection, the sounding of his horn commenced. Momentarily thereafter, and evidently when realizing that Dr. Little would not respect his superior traffic privilege, he applied the brakes. These, after taking effect, caused a continuous skidding of the truck's tires a distance of 30 feet and until the impact occurred. Faced with an emergency, not of his own creation, decedent did everything possible to avert the collision, but without avail.
Therefore, it is our holding that the gross negligence of Dr. Little in the operation of his machine was the sole proximate cause of the accident, and as a consequence he is liable for the damages occasioned. *Page 319
Foy, a member of the colored race, was 32 years of age and had a life expectancy of 18 years when death resulted. His position as a laborer in the Five Point Service Station, which he had held for a number of years, provided him remuneration of $40 monthly, payable on the first and fifteenth of each month.
Immediately following the collision, he was carried to a sanitarium in Winnsboro. Examinations revealed that there had been sustained a multiple fracture of the pelvis, internal injuries and much shock. All possible attention was given him, including operations and the administering of sedatives to relieve pain. At no time was he unconscious. Notwithstanding the morphine injections, excruciating and intense suffering endured until his passing, which occurred during the early morning of March 22, 1938, or slightly more than three days after the accident.
In assessing damages in cases of this nature, there is taken into consideration the pain and suffering of decedent, his station in life, his life expectancy, his earning capacity, and numerous other items.
Under the judgment of the district court, as our original opinion discloses, plaintiff in her individual capacity was awarded $3,794.50. This amount included sanitarium and physicians' bills and funeral expenses totaling $794.50 As natural tutrix for her three minor children, she was granted $6,000, or $2,000 for each minor. All assessments carried five per cent per annum interest from judicial demand. The claim of intervenor, which related to compensation payments, was recognized and ordered paid out of the funds to be obtained by the plaintiff. The award to plaintiff in her individual capacity has our approval and will not be disturbed. That for the benefit of her minor children is, we think, excessive. Damages of $1,500 to each minor, or a total of $4,500, is, under the existing circumstances, more nearly correct.
Subsequent to the granting of this rehearing and to the argument and submission of the case thereon, plaintiff departed this life. Specifically, she died April 21, 1940. Following her death, a petition was filed in this court by Tom Foy, the paternal grandfather of the three minor children, and by the Winnsboro State Bank and Trust Company, in which it is alleged that they have been appointed cotutors of the minors; and that such children have been recognized by the Fifth District Court in and for the Parish of Franklin as the sole and only heirs of Arnice Foy, the plaintiff, and as such heirs sent into possession of all of her property rights and credits, especially the judgment granted her individually by the trial court. Competent and adequate documentary evidence supports the allegations. On the strength of the petition, with the attached documents, and after giving due consideration to an opposition presented by defendants, we ordered that petitioners, in the capacity of tutors for the minors, be substituted as parties plaintiff and appellee in this cause in the place and stead of Arnice Foy, deceased; and that the proceedings be carried on with them.
The individual claim of the said Arnice Foy became clothed with judicial sanction and ripened into a duly adjudicated property right before her demise; and the award made to her individually by the district court, which we approve as above stated, was inherited by her sole and only heirs at law, the surviving minor children. Chivers v. Roger, 50 La.Ann. 57, 23 So. 100; Castelluccio v. Cloverland Dairy Products Co., Inc., 165 La. 606,115 So. 796 Hardtner et al. v. Aetna Casualty Surety Co. et al, La.App., 189 So. 365; Williams v. Campbell et al., La.App.,185 So. 683.
The Castelluccio case furnishes the latest expression of the Supreme Court on the matter presently under discussion. Defense counsel realize, as stated in their brief in support of the mentioned opposition, that the majority holding therein is contrary to their contention that a cause of action in favor of a widow abates by her death when occurring prior to its complete and final judicial determination, irrespective of a judgment in her favor by the district court; and they criticize such holding and the reasons given therefor.
But, say such counsel, even though Arnice Foy was granted judgment in the trial court, it was not in existence at the time of her death. They point out that this court annulled, set aside and reversed that judgment during the original hearing of the cause on appeal, and argue that our decree was merely suspended, and not revoked or voided, by the granting of the rehearing. Among the cases cited in support of this argument is Bloomfield v. Thompson, 134 La. 923, 64 So. 853. That decision, as we appreciate it, is also authority *Page 320 for the proposition that the filing of an application for a rehearing in an appellate court within the delay allowed by law for that purpose, has the effect of preventing the judgment of such court from becoming final. See also, Code of Practice, articles 911, 912 and 913. In the instant controversy the application was timely filed; and a rehearing, on which the case is now pending, was granted. Consequently, our original decree has not yet become final, and the judgment of the district court has never been effectively set aside.
For the reasons above assigned, the former decree of this court is recalled, annulled and set aside; and it is now adjudged and decreed that the judgment of the trial court be amended to the extent of reducing the total award made in favor of plaintiff, Arnice Foy, against the defendants from $9,794.50 to $8,294.50, and of ordering such reduced amount payable to the substituted plaintiffs and co-tutors, Tom Foy and the Winnsboro State Bank and Trust Company, for the use and benefit of the three minor children; and, as amended, the judgment is affirmed. Defendants shall pay the costs of both courts.
DREW, J., dissents, adhering to the former opinion of this court.