These two suits were consolidated for trial because they involve the same parties and the same accident.
Plaintiffs, aged 51 and 53 respectively, are the sole surviving sons and children of their 75-year-old father, and his pre-deceased wife, their mother. Defendants are the St. Charles Parish School Board; its liability insurer, Marquette Casualty Company; and Lester M. Hackman, driver of the School Board's pickup truck involved in the accident which resulted in the death of Plaintiffs' father.
Plaintiffs' father was killed almost instantly on a state highway, as explained hereinafter, which Plaintiffs charge was due to the negligence of the truck driver in not observing his crossing the highway, and in failing to stop his truck in time to avoid the accident. Defendants deny negligence and, in the alternative, plead the contributory negligence of the father in attempting to cross the highly travelled highway in an improper place; in not according the truck the right-of-way; and generally for not keeping a proper lookout and for not being attentive to the conditions then prevailing.
Plaintiffs seek damages of $60,000.00 for loss of companionship and affection of their father; for his intense pain and suffering before he died; for loss of his services; and for their own mental shock and suffering resulting from his death; and burial cost.
The district court rendered judgment for both plaintiffs jointly for $7,500.00, and in favor of Elmore O. Lanaux alone for $688.80, the cost of the funeral, with legal interest from judicial demand and all costs only against defendant Casualty Company. The Casualty Company has appealed. Plaintiffs answered the appeal asking for an increase in the award to $15,000.00 jointly.
At the trial it was stipulated that the accident occurred on April 14, 1959, at 11:30 a. m., on Jefferson Highway, near Arnoult Road, in Jefferson Parish, Louisiana; that the father of Plaintiff's died at 12:15 p. m.,
There were only two eyewitnesses to the accident who testified at the trial, the truck driver, Lester Hackman, and Bernard Latuso, the latter having observed the accident from atop a building overlooking the highway, while at work as an employee of the East Jefferson Parish Water Works.
Hackman testified he was unable to observe decedent on the neutral ground due to the heavy flow of traffic in the adjoining two left lanes which obstructed his view; that he was unaware of decedent's presence until he suddenly emerged from in front of another truck in the second lane to his left, at a time when he, Hackman, was almost abreast of this vehicle, and unable to avoid striking decedent.
Latuso testified that he continued to observe decedent's actions from the time he was on the neutral ground dividing the highway until the moment of impact and, contrary to Hackman, testified that traffic was not heavy but, to the contrary, there were only two trucks in the area in the eastbound traffic lane. He also testified that there were no objects which could have prevented Hackman from seeing Lanaux, particularly since Hackman was traveling to the right about four or five car lengths behind the truck in the adjoining left lane.
In his reasons for judgment, the district judge, inter alia, stated:
Under the last clear chance and discovered peril doctrine a motorist who observes or who should, by the exercise of reasonable care, have observed another in a position of peril may be held responsible for an ensuing collision with the other, despite any contributory negligence on the part of the latter if, after the duty to make such observation arose, the motorist could reasonably have avoided the accident. Belshe v. Gant, 235 La. 17, 102 So.2d 477; Rottman v. Beverly, 183 La. 947, 165 So. 153; Leon v. Jackson, La.App., 122 So.2d 102; Ingram v. McCorkle, La.App., 121 So.2d 303; Deck v. Page, La.App., 77 So.2d 209; Silvera v. Gallardo, La.App., 63 So.2d 15; Pereira v. Herbert, La.App., 59 So.2d 729.
Regarding quantum, the pertinent facts are that the decedent was living in the home of his son, Elmore, fifty-one (51) years of age and unmarried, a marine engineer going to sea since 1935. His average voyage was for forty-two (42) days, with six (6) days leave at home. Lester was fifty-three (53) years of age, married, and maintained his own home since 1949. He visited with his father about three (3) or four (4) times a month and occasionally took him to dinner. Deceased died within forty-five (45) minutes after the accident. No evidence was presented to show he experienced any unusual degree of pain, or that he was conscious during the period.
The judgment of the district court is correct and is affirmed, appellant to pay all costs in the district court, and each party to pay their own costs in this court.