L'Admirault v. Pointe Coupee Motor Co.

DISSENTING OPINION. LECHE, J. The demand herein is for damages, resulting from personal injuries inflicted upon plaintiff’s eight-year-old son who was struck by an automobile driven by defendant’s employee. The accident happened a couple of miles out of New Roads on the public highway along False River, about three o’clock in the afternoon of December 3, 1925. Plaintiff’s boy was walking along the right hand side and near the edge of the road, in a westerly direction away from New Roads. A large bus used for the transportation of school children, going in the same direction passed him and immediately thereafter, he darted aeross the road to his left and ran into and was struck by the automobile of defendant, driven by one Frank Hollins, going in the opposite direction or towards New Roads. *392 He was severely injured and the question in the case, is whether Hollins could, by ordinary prudence have avoided the acci dent. Hollins is a colored man, and Mr. Sentell, president of the defendant company, in whose employ he had been for about a year and a half before the trial of the case, and still was at the time of trial, credits him with a good reputation, as reliable, trustworthy and a careful chauffeur. He is, however, illiterate, and judging from his testimony, is of very ordinary intelligence. The contention of plaintiff is that Hollins saw the boy standing and waiting on the side of the road, in order that he might cross the road to go to his home, which was situated at a point about opposite the place where he was standing; that ordinary prudence suggested that Hollins should have apprehended and foreseen that the boy might, through childish lack of judgment and foresight, cross the road behind the school bus, without looking, and that it was Hollins’- duty to guard against such a danger. As proof of this lack of care on the part of Hollins, defendant propounded to Hollins, on cross-examination, the following question.: “Q. The answer says this: ‘that up to that time that you actually saw the said boy in front of your car on the public road, said boy had been completely screened from view by said bus, and seemed to have been waiting for said bus to pass by, so that he might cross the road to go to his home, which was on the right hand side of the street looking to New Roads.’ Is that the impression that' you formed of those children as they stood there by the side of the road? “A. Yes, sir. “Q. You had that impression at the time you saw them? “A. Yes, sir. “A. You are positive of that? “A. Yes, sir.” As a matter of fact, Hollins did not know the boy, nor the little girl who is said to have been with him. He did not know where they lived. He saw nothing to indicate that the boy intended to cross the road. This much abundantly appears from other parts of his testimony. The only thing supporting plaintiff’s contention is the allegation in the answer, that the boy “seemed to have been waiting for the bus to pass by, so that he might cross the road to go to his home,” and the answer of Hollins that such was his impression. Evidently, Hollins did not know the meaning of the word “impression” and if he did, then the statements which he made in regard to his appreciation of the situation when he collided with the boy are so contradictory as not to be worthy of belief. The fact that Hollins did not know the victim of the accident, did not observe anything to indicate the boy’s intention to cross the road, did not know that the boy’s home was across the road from the place where the accident happened, all of which facts contradict the theory of the answer and were admitted without objection, and finally the statement of Hollins that he, Hollins, could not have avoided striking the boy to save his life, indicate that Hollins does not know the meaning of the word “impression” and had no idea that the boy would emerge from behind the bus and get in the way, in front of and in the path of his automobile. An admission such as is made in defendant’s answer, when shown without objection on the part of the opposite party, to be not only unsupported by the testimony but in direct conflict therewith, should not stand in the way of ascertaining the real truth and reaching a conclusion in conformity with all the facts in the case. Technicalities should not obstruct' the fair administration of justice. *393 Oscar Parent, a white man, who was standing in front of his blacksmith shop situated a few hundred feet, in the direction of New Roads, from where the accident happened, absolutely disinterested in the case, and the only witness who saw the whole occurrence, says that the boy victim was holding on to the b'aek of the bus as the bus passed his blacksmith shop, and when the bus reached the boy’s home, the boy let go his hold, and darted across the road in the path of the automobile by which he was struck. This statement of Parent is partly corroborated by Henry Landry (p. 66), a young white man who was in an automobile following the bus. This version qf the accident bears all the earmarks of truth and reason and shows that the injury inflicted on plaintiff’s son was unavoidable. The judgment appealed from is in favor of plaintiff and does not seem to be supported by the testimony in the record. It should be reversed and plaintiff’s demand rejected at his costs, and for these reasons, I respectfully dissent.