In the exercise of our supervisory jurisdiction (Article VII, Section 11, Louisiana Constitution of 1921), we directed a writ of certiorari to the Court of Appeal, First Circuit, in order that we might review its judgment which amended the judgment of the trial court by reducing an award of $3,000.00 to plaintiff for the use and benefit of his minor son to $1,500.00 and affirmed the judgment in all other respects. 101 So.2d 704.
In its opinion, the Court of Appeal recited the facts of this matter in detail, and since there is no serious controversy as to its findings of fact we shall repeat only those facts necessary for our decision on this review.
On May 29, 1956, at approximately 4:45 P.M., plaintiff's seven year old son, Robert (Bobby) McCandless, while riding a bicycle, was struck and injured by one of defendant's trucks being driven by Nolan A. Chaix, Jr. The accident occurred in Baton Rouge on North Forty-fifth Street, which is approximately twenty-three feet wide, running north and south. It intersects Winbourne Street, which is approximately twenty-two feet in width and runs east and west.
Defendant's truck was traveling west on Winbourne Street, and upon reaching the North Forty-fifth Street intersection, the driver turned to his left in a southerly direction into North Forty-fifth Street, on his way to his employer's business for check out details. After negotiating the turn at a speed of no more than ten miles per hour, the truck was approximately twenty-six feet south of the south parallel line of Winbourne Street; it was not in the right lane of traffic (south traffic lane), being approximately eight feet west of the east parallel line of North Forty-fifth Street and thirteen feet east of the west line. At this location (north bound or east lane of traffic), the front end of the truck struck Bobby, who was attempting to cross North Forty-fifth Street from west to east.
Bobby was neither struck a hard blow, nor was he knocked unconscious; he did experience dizziness and was temporarily in a confused state. Upon arrival at a local hospital, where he was hospitalized overnight, his injuries were tentatively diagnosed as a cerebral concussion, plus multiple contusions and abrasions. Dr. Harold Holden discharged him from his care on June 20, 1956. No complications had developed at that time, and a physical examination, including neurological examination, showed that the child was within normal limits. On April 29, 1957, Bobby was examined by Dr. Charles McVea, who found no abnormalities. He thought that Bobby was in good condition and was essentially a normal child.
The defendant denied any negligence on the part of its driver; in the alternative, it pleaded that Robert McCandless was guilty of contributory negligence in darting into North Forty-fifth Street on his bicycle away from the intersection and directly within the path of defendant's truck, without seeing or heeding its approach, if he saw it, which he could and should have done.
The trial judge found that if any negligence could be imputed to Bobby McCandless, the truck driver had the last clear chance to avoid the accident. He was of the opinion that had the driver observed LSA-R.S. 32:235, the accident would never have happened. He stated:
The Court of Appeal agreed with the above statement of the trial judge and concluded:
Defendant argues in this Court that the Court of Appeal grievously erred when it made the above finding. It contends that the Court of Appeal erred in holding defendant's agent guilty of any negligence whatsoever and in not holding plaintiff's son guilty of negligence, which was the proximate cause of the accident. It urges that plaintiff is not entitled to recover damages.
The evidence of record is meager. Bobby McCandless was not called to the stand by either the plaintiff or the defendant. No one saw Bobby from the time he left the curb to cross North Forty-fifth Street until the moment of impact.
"Q. Going east? A. Yes.
"Q. You did not see him or anyone else? A. That's right.
* * * * * *
"Q. Was he moving? A. He—
Chaix stated that he had no time to swerve his truck; that he did not knock Bobby, and that Bobby stayed on his bike until the truck was stopped and then fell off, the bike being right in front of the truck. He further testified:
Chaix was of the opinion that his truck was in the center of North Forty-fifth Street at the time of the accident. He said that he was looking at what he was doing, but he still did not see Bobby. He admitted that there were no obstructions to his view.
Mrs. James L. Pierce, whose home was located on the fourth lot from the intersection, testified that she saw the telephone truck turn the corner and that she saw the driver jump out and run to the little boy. She was asked, "Did you see the little boy on the bicycle as the truck was making the turn?" Her reply was that she did not see Bobby when he was hit, and that she did not see where he came from. She placed the truck in its wrong lane of traffic.
Mr. James L. Pierce did not see the accident, but he went to the scene shortly after it occurred. He placed the truck on the east side of the road going south on North Forty-fifth Street.
Richard McCandless, Jr., who was thirteen years of age and in the sixth grade at the time of trial, testified that on the afternoon of the accident he, a friend, and his brother had gone to the dime store on Winbourne Street for his mother. All three were riding bicycles, and returning home they rode on the sidewalk on the south side of Winbourne Street in procession form. Bobby was in the lead, and Richard was in the center; they were talking to each other. It was their intention to cross the intersection and continue on the south side of Winbourne Street for another block before making a right turn. Richard said that he saw Bobby stop at the corner, saw him start across the street, and saw him get hit by the truck. When asked whether he saw the Southern Bell Telephone Company truck, he replied that he didn't see it until it hit Bobby. He testified that there was traffic on Winbourne Street; he said that there were no obstructions at the intersection other than a telephone post. This post has not been claimed to be an obstruction. After the accident, Richard rode southward in front of the truck and went to his brother.
It is elementary and settled law that in a damage suit the burden of proof is on the plaintiff. Tadin v. New Orleans Public Service, Inc., 226 La. 629, 76 So.2d 910. In the instant case, plaintiff's has proved that his child was hit by defendant's truck; he has proved that its driver violated LSA-R.S. 32:235;
The peculiar facts of this case do not warrant the application of the doctrine of "Last Clear Chance." Nowhere does the evidence disclose a situation of "Discovered Peril" and an opportunity to avoid the accident.
We believe that the fact that the driver did not see Bobby until he was directly in front of his truck constituted a violation of the well-recognized and settled rule that the duty of those in charge of motor cars and engines to look ahead and observe never ceases; that what they can see they must see, and in legal contemplation they do see; that their failure to see what they could have seen by the exercise of due diligence does not absolve them from liability. Jackson v. Cook, 189 La. 860, 181 So. 195. The evidence is conclusively clear that had Chaix been observing the entire proximity of the intersection, he would have seen Bobby and could have avoided the accident.
We conclude that the truck driver Chaix, who was driving at a maximum speed of ten miles per hour, was negligent in not exercising due care in observation; his conduct, gauged according to the condition of the intersection (a Doctors' Building allowing off-street parking at one corner and a children's play ground within the vicinity), was not of sufficient alertness to conform to surrounding conditions.
The evidence of record shows that it is possible that had Chaix not violated LSA-R.S. 32:235, he might have avoided the accident. Such violation certainly constitutes a lack of due diligence. We, therefore, conclude that the instant accident was caused by the negligence of the truck driver in not exercising due care at the intersection and in not observing what he could have seen and in legal contemplation did see.
Defendant did not offer any proof to show that Bobby was contributorily negligent. The affirmative facts set forth by plaintiff disclose no contributory negligence on the part of his son. There is no evidence of record disclosing the speed or path of Bobby's bicycle while it was in the intersection; nor is there any evidence reflecting that Bobby saw the truck before the impact.
Plaintiff relator urges that the judgment of the trial court should be reinstated, and that the award allowed by the Court of Appeal should be increased to $3,000.00.
Mr. and Mrs. McCandless testified that as a result of the accident Bobby was highly nervous with associated nausea and had never ridden his bicycle again. The medical testimony submitted at the time of trial was to the effect that Bobby was entirely recovered. There is also evidence showing that his progress in school was neither impeded nor delayed by the accident.
The evidence reflects that at the time of the accident the truck driver treated Bobby with kindness and consideration. Bobby was taken to the hospital for overnight observation and later made at least four calls to the doctor. He suffered some discomfort, pain, and confinement, and also experienced a mild shock. We believe that an award of $1,500.00 is just and liberal.
No contention is raised with respect to the correctness of the allowance of $146.50 to plaintiff for medical expenses and the allowance of $50.00 each to the medical experts who testified.
For the reasons assigned, the judgment of the Court of Appeal, First Circuit, is affirmed. All costs are to be paid by defendant.