I respectfully dissent from the majority opinion. As the trial judge stated in his written opinion, and as shown by the majority opinion of this court, there is no question of law involved. Only facts are involved, and in my opinion the testimony shows, if it does not demonstrate, that the defendant is not liable. I have read and reread the testimony and have given to it as careful consideration as it is possible for me to give to any record, and I am firmly convinced that the majority opinion fails to give that credit to the testimony of defendant's witnesses to which it is entitled. It fails also to recognize the weakness and uncertainty of the testimony of plaintiff's witnesses. The following undisputed facts, I think, show conclusively that the majority opinion is incorrect.
The trial judge said in his written opinion:
"There is only one question in this case, and it is purely and simply a question of fact. The question to be determined by the Court is whether the bus, in passing the car in which plaintiff was riding, cut over too quickly toward the right and thereby struck the car, causing it to be wrecked and plaintiff injured, or whether the car in which plaintiff was riding swerved to the left across the center of the road and struck the bus as it was passing, thereby causing the wreck and causing plaintiff to be injured." *Page 136
That is a correct statement of the issue involved. If the driver of the coupe in which plaintiff was riding kept it on its right-hand side of the road and if the driver of the bus in passing the car cut too quickly to the right causing the bus to strike the front end of the car, then the driver of the bus was negligent and the defendant is liable. This, as the trial judge said, is a question of fact.
Plaintiff does not allege that the car in which she was riding was struck at or near the rear end by the bus. She alleged that the bus "struck and touched the left side of the front" of the car.
She further alleged that the paved part of the highway was 18 feet wide and that the car in which she was riding "was being operated well on its half and side of the said paved portion of the highway at the time said motor bus and coach approached and struck the said automobile".
If, as alleged, the car in which plaintiff was riding was being operated "well on its half and side of the paved portion" of the road at the time the bus "approached and struck" the car, the driver of the car was not at fault.
There were three persons in the coupe — Miss Durbin, the driver; Mrs. Fogleman, the plaintiff, and Mr. Ipes, the owner of the coupe. Each of these testified positively that the coupe was at all times well over on its right-hand side of the pavement. Miss Durbin was questioned particularly as to whether she got off her right side and said she did not. *Page 137
Mrs. Fogleman, the plaintiff, said she was riding on the right-hand side of the coupe and saw the bus before it overtook the car. She was asked how long before and said, "We were on the right side of the road and I happened to look back and made the remark there is the bus."
On being questioned further, she said Miss Durbin was driving on the "right side of the black line". She was asked what part of the coupe was struck by the bus and said, "The left hand side, we was over on the right hand side of the road."
Mr. Ipes, the other passenger, was asked whether he knew what position the coupe occupied on the road and said, "It was on the right hand side of the road."
The testimony of the occupants of the car is in exact accord with the allegations of the petition that the car, when approached and struck by the bus, was well over on its half and side of the paved portion of the road. This they definitely recalled.
But, as relates to what the trial judge thought was the pivotal point in the case — and I agree with him on that point, which is whether the bus, in passing the car, cut over too quickly to the right and thereby struck it —, the occupants of the car, while being examined by counsel, gave no testimony whatever. Not one of them said that the bus cut over to the right too quickly. All they remembered was that the car was over on its right-hand side of the pavement and that the bus struck it, causing it to leave the road and turn over several times.
After each of them had been examined and cross-examined, the trial judge, who *Page 138 seems to have realized that they had given no testimony touching what he considered the crucial point in the case, asked Mr. Ipes, who was the last of the three to take the stand:
"How do you explain the fact that if you were on your side of the road and the bus was going around you how did the bus hit the front end of your car?"
His answer was, "He cut back too quick, is all I know."
What Mr. Ipes had previously said about what he knew of the accident indicates that his reply to the judge's question was an afterthought. Counsel for plaintiff asked him, "State what you saw of the bus before and at the time of the accident." He answered, "Mrs. Fogleman said there is the bus, I looked up and could see the passengers in the bus, and they hit me and I don't know anything more about it."
On cross-examination he was asked, "Where was the bus, on the side of your car?", and he said, "Right by the car, I could see the side of the bus, the passengers, then it hit me and that is all."
He was asked whether the coupe ever went off the road and then back, and he said, "I didn't see nothing, I looked up and the bus hit us right then."
If he had seen the bus cut over to the right, it is reasonable to assume that he would have said so. Immediately after Mr. Ipes left the stand, Mrs. Fogleman, the plaintiff, was recalled and questioned by her counsel. *Page 139
Although she had said nothing in her first examination about the bus's turning to the right and although the trial judge had indicated by questioning Mr. Ipes that he thought the question whether the bus had turned to the right too quickly was highly material, counsel did not question her about the point, and she said nothing about it. And, after the defendant had closed its case, Miss Durbin, the driver of the car, was recalled by counsel for plaintiff. But she was not questioned as to this point and said nothing about it.
A man named Homer Perkins testified for plaintiff. He said he was driving a log truck along the road and that a car and later a bus passed him; that they went on ahead of him about 75 or 100 yards when the bus "started passing the car and the car was on the right hand side of the road, and the bus started by the car and cut back and somewhere along about the middle of the bus or behind caught the front of the car and they went together." He said the "car was fully on the right hand side of the black mark". He said he was about 125 or 150 yards away when the cars collided. He said, "It looked to me like it cut back too quick and hung on the front of the car."
He said he drove his truck on up the road, passed the wrecked car and the bus, stopped his truck, and walked back to the scene, but spoke to no one and offered no help.
Whether this man Perkins was there and saw the accident as he said he did is a disputed question. He is the only one who *Page 140 said he was there. No one saw him there. He says he spoke to no one. The occupants of the car did not see him, of course, because they were in the wrecked car. But, if their car had passed his log truck just before the collision, they would have known that, yet they said nothing about it. The bus driver and the four passengers thereon were questioned as to whether he was there, and each said he was not, or at least, if he were, they did not see him, and each testified positively that the bus did not pass a log truck or any other vehicle just before the collision. The testimony as a whole makes it extremely doubtful that Perkins was there.
Defendant called five witnesses who were on the bus at the time of the collision. One was J.A. McKenzie, the driver. The others were Mrs. Mimms, Mrs. Dufour, Mrs. Reiszner, and Mr. Casteix, who were passengers on the bus. These passengers, as disclosed by the record, are all intelligent people of good standing. They said they had no interest in the outcome of the litigation. Mrs. Mimms is the daughter of a merchant and the wife of a rice farmer. She was not acquainted with the bus driver, nor with any of the insurance adjustors. She said she was riding on the right-hand side of the bus in the second seat from the front; that she was looking ahead through the windshield, saw the coupe before the bus reached it; that the car was on its right-hand side of the road; that the driver sounded his horn as a signal that he intended to pass; that the bus pulled over to the left of the road and, as it was in the act of passing the car, was *Page 141 on the left-hand side of the black line, and that the car was on the right-hand side of it. She was asked, "When the bus driver pulled out to pass the car, what happened?" Her reply was:
"When he started to pass, the car was on the right side of the black line, the car then pulled out on the shoulder slightly and then cut back on to the road, and at that time pulled too far in and hit the bus."
She said that, while the bus was in the act of passing the car, she was not looking at the black line in the road but was looking at the car on the right through the window by which she was sitting; that, when the car hit the side of the bus, it swerved to the right and went off the road, and that she then looked ahead through the windshield to see what was going to happen to the bus, and that, when she looked ahead, the bus was still on the left of the black line, but, after the collision and after the car left the road, the bus went to the right-hand side of the road and stopped.
Mrs. Dufour, another passenger, is a stenographer and lives in Lake Charles, where she is employed by the Fire Insurance Adjustment Bureau. She said her employer did not represent the insurer in this case. She was sitting next to the window on the right-hand side of the bus about four seats from the front. She paid no attention to the black line but said she knew that the bus was on its side of the road and that the coupe was on its side. While the bus was in the act of passing the coupe, she said she was looking through *Page 142 the bus window at the car and saw that it was "zigzagging", that it "was going slightly from side to side"; "it was wabbling"; and that in one of the side-to-side movements it hit the bus. She swore positively that the bus did not turn to the right of the road until after the collision and after the coupe had gone off the road.
Mrs. Reiszner, another passenger, teaches school near Sulphur, La., and lives in Alexandria. She occupied the first seat behind the driver. She did not notice the coupe particularly, nor the black line in the road, but said the driver did sound the signal to pass. She said she was looking out through the left-hand corner of the window and knew that the bus was on its side of the road. As the bus was passing the car, she heard a "screeching sound" and said she turned and saw the car turn over. She said the bus was going straight on its side of the road. When asked whether the bus cut to the right while passing the car, she did not answer yes or no but said that the bus was "going straight".
Mr. Casteix, another passenger, was going to Alexandria. He is a state employee working at the Central Louisiana State Hospital at Pineville as ward attendant and general utility man. He occupied a seat on the left-hand side of the bus and was looking ahead through the windshield. He said the bus was traveling straight on its side of the road. His testimony differs from that of the other passengers in this: He said the bus passed the car, got ahead a car's length; that the car apparently speeded up in order to pass the bus and ran into the side of it. *Page 143
McKenzie, the bus driver, said he gave the signal to pass as he approached the car; that the driver apparently heard the signal, for he saw the car turn slightly to the right. He said he pulled over to the left side of the pavement and passed the car while the bus was on its side of the road, went straight ahead and did not turn to the right until after the collision. He, like the passenger Casteix, said that the bus passed the car, that the car speeded up apparently to pass the bus and ran into the side of the bus. In this respect these two witnesses were not in accord with the three women passengers.
But all five of these witnesses testified positively that the collision was not caused by a turn of the bus to the right. Counsel for plaintiff criticizes the testimony of the passengers. He says that they probably were not looking. But they say they were, and no reason is suggested why they should not be believed.
Aside from the above testimony is this, which is significant. Miss Durbin, the driver of the car; Mr. Ipes, the owner of it, and the plaintiff were picked up, put on the bus, and carried to Oakdale. Miss Durbin was badly shaken up and for a while was unconscious. Mrs. Mimms says that, when they entered the bus, she moved from her seat to the one directly opposite and that Mr. Ipes and Miss Durbin then occupied the seat she had before. She says she heard Miss Durbin ask Mr. Ipes what had happened and heard his reply, which was "you ran into the bus".
Mrs. Dufour, the stenographer, says that she was in the seat behind Miss Durbin and *Page 144 Mr. Ipes and heard a conversation between them; that Miss Durbin wanted to know what had happened, and Mr. Ipes said to her, "you hit the bus". Mrs. Reiszner, the teacher, said she heard the conversation but paid no attention to what was said. Mr. Casteix said, "I heard the little lady that was driving the coupe say something to the man, what happened. He said we ran into the bus."
Miss Durbin, when recalled, said she did not remember the conversation; that, if she said anything about the accident, she could not recall it. Mr. Ipes was asked on direct examination whether he did not recall that he had a conversation "with Miss Durbin in the bus and Miss Durbin asked you what happened and you told her you ran into the bus". He answered, "No sir."
I can imagine no reason why these passengers, all of good standing and seemingly intelligent, should deliberately swear falsely in this case in which they have no interest at all. It may be suggested that the occupants of the car should not be accused of doing so. Nothing said in this opinion is intended as such accusation. The fact is that they did not testify positively about anything that happened except that their car was well over on its right side and half of the road. When questioned about the details, they invariably said they did not know or could not remember. Mr. Ipes on one occasion said, "I didn't see nothing, I looked up and the bus hit us right then."
As to plaintiff's theory and contention that the bus driver turned to the right too soon, the testimony that he did not *Page 145 unquestionably outweighs the testimony that he did. Besides, there seems to have been no reason why he should have done so. It was daylight, the road was straight and level, and there is no testimony that a vehicle was in sight approaching from the opposite direction.
Now as to skid marks. At the time of the collision, the concrete pavement was dry. It is undisputed that these marks began over on the left-hand side of the black line which ran down the center of the 18-foot concrete pavement. From there they ran up the pavement diagonally to the right a distance of about 35 or 40 feet to the edge of the pavement. From that point there were markings and "furrows" on the ground up to where the coupe came to rest. The witnesses traced the pathway of the coupe from where the skid marks began on the west side of the black line to the edge of the pavement and thence directly on to where it had stopped. It is not disputed that these skid marks were made by the wheels of the coupe, nor that the marks began at the spot where the brakes were applied. The brakes seem to have been used to full capacity. All four wheels skidded. They were evidently locked.
Willie Byrd, an automobile mechanic who works for a garage at Oakdale, picked up the wrecked car and examined the marks on the road. He said rubber was "burned into the road".
Counsel for plaintiff brought out from this witness that rubber would not have been burned on the road if the brakes had *Page 146 not been applied. He then asked the witness whether there was any way of determining whether the brakes were applied after the collision or before, and he said there was not. The theory of defendant's counsel was that the brakes were applied and the skid marks made after the collision and when the driver of the coupe was trying to hold it on the road.
It was then clear that the question as to when the brakes were applied was highly important. The witness, Willie Byrd, was the last one called by defendant. After it closed its case, counsel for plaintiff recalled Miss Durbin, the driver of the coupe, in rebuttal, and asked her, "When if at any time did you apply the brakes on your car?" She answered, "When the bus was behind us, Mrs. Fogleman told me about it and I applied the brakes and got on my side of the road." She said she had not applied them before. Plaintiff's counsel then asked her, "You applied the brakes as you turned over?", and she said, "Yes sir, when she told me." The witness was not cross-questioned, and both sides closed.
This is the only testimony in the record relating to the question as to when the brakes were applied. According to this testimony, they were applied when the bus was behind the coupe and as the driver "turned over". Miss Durbin did not state that she used the brakes after that.
If this is the only time that Miss Durbin applied the brakes, it is evident that the collision could not have taken place in the manner plaintiff's counsel claim it did. The *Page 147 reason is plain. The skid marks began when the brakes were applied, and the coupe immediately turned to the right and went off the road entirely within the short distance of 35 or 40 feet. If this theory is correct, the coupe must have gone off the road in less time than it would have taken the bus to overtake it. Besides, the coupe was traveling sharply to the right moving out of the way of the bus. So, if the driver of the coupe applied the brakes only one time and then when the bus was behind, there could have been no collision.
But there was a collision, and there must be some reasonable explanation as to why there was. Miss Durbin no doubt applied the brakes when she said she did, but she evidently applied them again, at a later time. It is unreasonable to assume that the skid marks were made when she says she applied the brakes. They were made, according to the witnesses who examined them, by locked wheels, after the brakes were applied to full capacity. There was no reason so to apply them when the purpose was merely to "turn over". It is more reasonable to assume that the brakes were jammed on and the marks made after the emergency arose. The emergency arose not when Miss Durbin was informed that the bus was approaching from behind, but when the collision occurred. It was then necessary to apply the brakes to full capacity in order to hold the car in the road. Evidently then is when the skid marks were made. This corroborates the testimony of the passengers on the bus that Miss Durbin lost control of the coupe while the bus was running along by the *Page 148 side of it and that the coupe wabbled and zigzagged and finally got too far over and came in contact with the passing bus.
For these reasons, I respectfully dissent.