Busch v. Scimeca

ON REHEARING

ELLIOTT, J.

As our original opinion herein in effect stated, plaintiff contends that defendant’s car was being driven westward along North Street in the City of Baton Rouge at a high rate of speed and in a reckless, careless and dangerous manner. That while his daughter, Miss Rhea Busch, was standing on the south side of North Street and just east of the street car tracks, which enter it from Duggan Street, cross and then leave it by way of Fryous Street, Nick Scimeca, defendant’s son, with startling suddenness and quick as a flash, carelessly, without cause, and with wanton recklessness, turned and drove the automobile to his left, towards plaintiff’s daughter, causing it to swoop upon and strike her. That it was because of the high speed, reckless, careless, imprudent and wanton manner in which the said Nick Scimeca "was operating said automobile, that -plaintiff’s daughter was struck and injured. That there was no fault on her part, etc.

Defendant denied the negligent, fast, reckless and wanton driving alleged against his son, and alleges that the striking was caused by the acts of plaintiff’s daughter in dashing in front of his son’s automobile without looking to see if a car was coming, and at a time when it was impossible for his son to avoid striking her. Plaintiff’s daughter and defendant’s son are both minors. Plaintiff therefore sues in behalf of his daughter and defendant defends in behalf of his son. The evidence on the subject of negligence is conflicting, as stated in our original opinion, but upon looking into it again, we conclude that plaintiff’s case is established with reasonable certainty.

The evidence shows, as stated in our original opinion that plaintiff’s daughter, Miss Rhea, about fourteen years of age accompanied by her brother, Louis, about fifteen years old at the time, and Mrs. A. A. Randolph, a cousin, were walking on the south side of North Street and preparing to cross it just east of the street car tracks, which enter it from *457Duggan Street, cross North Street, and then leave it by way of Fryous Street. North Street ends near this place, and thence continues on as the Greenwell Springs Road. The street is thickly populated and closely built up at this place with residences, stores, shops, garages, etc., and is in frequent use by automobiles and people on foot traversing and crossing it. Miss Busch stopped on the culvert which spans the gutter on the south side of the street a minute or so for the purpose of removing some powder from her face. This culvert is spoken of by the witnessing as a bridge. Mrs. Randolph and Louis Busch walked on, while she delayed, and when she started up and started to cross, her brother and cousin had gotten practically across the street. Miss Busch says in her testimony that as she stepped off the culvert and started to cross the street, she looked up the street and saw defendant’s car coming, going west at a great speed. That she stopped where she was at the time for it to pass by. That as it came near her, it swerved toward her, and came on so fast that it hit her before she could move. According to the objects mentioned by her as being opposite the place where she first saw the car as it was coming, it was one hundred feet or more distant from the place where she was at the time. She estimated that she was some four or five feet out in the street at the time, but could not say exactly how far out she was. That she was standing still watching the car, and not her brother and cousin, and did not stoop down to fix her shoes or stockings. That the car could and would have missed her, had it not swerved towards her. That it knocked her about ten feet in front of it, and as she fell, it hit her again, knocking her about ten feet further. That the street was straight and unobstructed. That there was nothing in the street which interfered with defendant’s son seeing her, etc. Her testimony is supported by Mrs. Randolph, Mrs. Hall, Mrs. Phelps, and in regard to the speed of the car, by Mr. Randolph. Her testimony is supported by Leon Raiford, except that he says she was not standing stiil when struck. He says that as the car came close to where she was, that she jumped back and attempted to dodge it, but in all other respects he agrees with her and the other witnesses above mentioned. That she was out in the street some five or six feet from the culvert, that the car coming in the middle of the street, swerved south and struck her. He estimated that the car was within five or six feet of her when it commenced to swerve; says that there was no obstruction in the street that made such a swerve necessary; that if it had not been swerved southward, she would not have been hit, as she jumped back far enough to escape, if it had not been swerved toward her; that the car seemed to be going fast, etc. Mrs. Randolph says that defendant’s son was not looking at the road ahead of him, but had his face turned at the time toward his companion sitting in the car beside him, and was laughing. She further testified that on Saturday evening about 9 o’clock, after the occurrence, and after Miss Busch had been taken to the Lady of the Lake Sanitarium, that Sam Scimeca accompanied by two parties, one of whom he introduced to her as his brother-in-law, and whom she recognized on the trial as Joe Lece, came to the Sanitarium. That Sam Scimeca informed her that he was in Plaquemine at the time of the accident. That he had been notified of it by telephone, and had come to Baton Rouge immediately to see about it. That he told her not to spare any expense in regard to Miss Busch, that he would pay the bill, etc. That she asked the party with him if he had seen the occurrence, and he an*458swered that he had not. On the trial of the case she recognized the party who had so been introduced to her and had informed her at tho time that he had not seen the occurrence, as Joe Lece. Joe Lece testifying as a witness for the defense, that he had seen the occurrence, etc., denied that he had gone to the Lady of the Lake Sanitarium with Sam Scimeca, and denied that he had stated to Mrs. Randolph in response to question by her, that he had not seen the occurrence. During his testimony he was asked if he knew Leon Raiford, witness for the plaintiff who had preceded him on the stand, etc.

“Q. Did you see this man the evening of the accident?
“A. No, sir. He didn’t see it.”

His answer in no wise responsive to any question previously asked him, indicates a certain mental course resolved on, and with which he was obsessed. Plaintiff’s counsel informed him that he had not answered the question asked him, etc. He then stated that after seeing the occurrence himself that he had left the place, and on his way home had met Mr. Raiford coming to town, which, if true, would mean that Mr. Raiford had testified untruly in saying that he had seen the occurrence, etc. The witness Lece also says in one part of his testimony that plaintiff’s daughter was in the middle of the street at the time she was struck, and in another place, that she was within four or five feet of the sidewalk at the time. Sam Scimeca says that he called at the sanitarium Sunday morning instead of Saturday night as claimed by Mrs. Randolph, and to support his denial, he tendered rebuttal evidence to show that he was in Plaquemine on Saturday night and was there on Sunday morning, and didn’t know of the occurrence in question until Sunday morning, when he was arrested. The Court refused to permit him to introduce the evidence, and we do not therefore know what he might have proved, but the tender, had it been permitted and the offer made good, would have contradicted Nick Scimeca, his son, who had previously testified that his father did come back to Baton Rouge Saturday night, and was at home the night in question. He also attacks the testimony of Mrs. Phelps. After the case had been partly tried and the testimony of Mrs. Phelps and a number of others heard, court was adjourned for several days. In the interim, and before the trial was resumed, defendant called on Mrs. Phelps. He was asked by plaintiff’s counsel:

“Q. Why did you go there?
“A. Because after I got the suit paid for, I was going around to see who knew about this wreck, so I went to the lady yonder. She told me that she saw this boy going sixty miles an hour and hit. the girl. Then I asked her if she was going to be a witness for these people. She told me she was in business, and ‘I ain’t going to witness for nobody.’ After that she turned and told me, ‘Who pays me the most I will witness for,’ and I have got somebody to prove it.
“Q. Why did you go to Mrs. Phelps’ house after the trial last week?
“A. Because she never told the truth.
“Q. Why did you go to Mrs. Phelps’ house?
“A. Because she never told the truth.
“Q. Didn’t you shake your finger in her face and threaten her?
“A. I said, ‘Why didn’t you tell, the truth like -you did inside the store, etc.”

Mrs. Phelps called in rebuttal, testified that. defendant called at her store after she had testified, shook his finger at her, and said: “You told me if I paid you, you wouldn’t say nothing.” That she told him he was a liar.

We are satisfied that the testimony of Mrs. Randolph, Mrs. Phelps and Leon Raiford was given sincerely. There are some differences in their statements, but the at*459tacks made on same have created in our mind an effect, the opposite thereby intended.

Nick Scimeca says that Miss Busch stopped to fix her shoes or stockings. That he slacked up when he saw her on the bridge. That when he got within ten or twelve feet of her, she ran across the road. That she saw him coming, and was nearly on the north side of the street. That she then tried to turn back to the south side. When she did, that he swerved his car to miss her. Then she turned back north, and he swerved his car to miss her again, and hit her. That he was going eighteen or twenty miles an hour at the time.

“Q. What did you do if anything, when you saw her cross the road?
“A. Slacked up. I see her on the bridge. When I got right up to her, she ran across the road. The left fender hie her in the center of .the road and knocked her down.”

After he had made it plain that after he had come up within ten or twelve feet of where Miss Busch was standing, he swerved his car first to one side and then to the other in his efforts to miss her, but that each 'time she had turned and placed herself in his way, and was at last hit, plaintiff’s counsel asked him:

“Q. Can you swerve your car to the right, then swerve back to the left, and then back to the right again in ten feet?
“A. I didn’t do all that.
“Q. What did you do?
“A. I told you what I did.
“Q. Well tell it again.
“A. I ain’t going to do it.”

Instructed by the Court to answer, he did so, but his answer was different from his previous statements on the subject. The questions had caused him to reflect on the difficulty of swerving a car, as he contends he did, going eighteen or twenty miles an hour while traversing a distance of ten or twelve feet. A number of witnesses testified as did ' defendant’s son.

We are satisfied on reconsideration that defendant’s car was being driven at the time and place in question at about thirty-five or forty miles an hour. The noise it made as a result of its speed, and the fact that it knocked Miss Busch some fifteen or twenty feet when it struck her, corroborates plaintiff’s witnesses, that it was running at great speed. It was being-run entirely too fast for the street it was on, at the place in question. It was not under control, therefore, its speed was reckless. We are moreover satisfied that defendant’s son was not looking ahead in the direction he was running, and that he did not see plaintiff’s daughter until his car got within ten or twelve feet of her. The effort he then made was of no more effect, at the speed he was running, than if none had been made. The street was straight. There was nothing in the street to prevent him seeing plaintiff’s daughter. Therefore he should have seen her and would have seen her if he had been looking ahead, ’ and on his guard. Plaintiff’s daughter and some of his witnesses claim that she was standing still at the time she was struck. The witness Raiford says that she jumped back just before the car hit her. The defense witnesses testified on this subject as heretofore stated. It is likely that being frightened at the car bearing down on her, she did jump back. It was a natural impulse and she may have done it about the time defendant’s son swerved his car, and she may have jumped in the direction in which he swerved. If she did, it was an involuntary act on her part to escape being run over as a result of the wrongdoing o‘f defendant’s son. It makes no difference, as *460we see the case, whether she was standing still at the time, five or six feet in the street or walking across it. If defendant’s car had been under control, and if his son had been looking ahead and on his guard, he would have seen her in time to have had his car under control and avoided running over her. Defendant’s contention that plaintiff’s daughter negligently dashed in front of his automobile, without looking to see if cars were coming on the street is not a proper conclusion from the facts and circumstances of the case.. It was the duty of his daughter to use care and prudence in crossing the street and not to attempt to cross it without looking up and down the street for automobiles. The evidence does not show a failure on her part in that respect.

We think that the primary and governing cause of the injury to plaintiff’s daughter was the reckless and uncontrolled speed of defendant’s car while being driven on the street by defendant’s son without looking ahead and without observing proper care, and that defendant is responsible for the harm thereby done.

The cases of Burvant vs. Wolfe, 126 La. Ann. 787, 52 So. 1025, and Albert vs. Munch, 144 La. 686, are applicable to the present situation.

The judgment appealed from is correct except as to the amount of damages. The necessary expenses of plaintiff at the Lady of the Lake Sanitarium, bills of physicians, nurses, druggists, etc., amount to $452.00. The sufferings of his daughter were intense and endured for three or four months, and she had not entirely recovered for nearly nine months after the occurrence. She had suffered as a result of her injuries a serious facial disfigurement. We have concludéd that the amount allowed plaintiff on account of the injuries sustained by his daughter should be increased to $1,000.00, but that his other expenses claimed in his petition were properly rejected.

For these reasons our previous opinion and decree herein is finally set aside. The judgment appealed from is now re-instated and increased to $1,000.00 with legal interest thereon from March 2, 1927, until paid, and as thus amended, affirmed. Defendant to pay the costs in both courts.