Hogan v. N. O. Public Service, Inc. , 16 La. App. 637 ( 1931 )

WESTERFIELD, J.

Plaintiff sues .for damages for personal injuries sustained by him as the result of a collision on March 8, 1926, between a Studebaker automobile, in which he was riding, and a street car operated by the defendant corporation. The accident occurred on Metairie road, New Orleans, at a point where the tracks of the defendant corporation cross the paved roadway diagonally.

The motorman of the street car of. the defendant corporation is said to have been negligent, in that he failed to look before him when crossing the road, and emerged from the right of way of the railway company on the right, into the two-way paved road, much frequented by automobiles, without having his car under control and without sounding his bell or other warning signal prior .to his having attempted to cross the highway.

At the time of the accident plaintiff was. employed by Dan S. Lehon Detective Agency, a corporation engaged in the business of making investigations, furnishing watchmen, and protecting persons and property. He was one of the occupants of a Studebaker automobile belonging to his employer, the other occupants being Dan S. Lehon, the president of the corporation, Percy Beil; negro chauffeur, Harry O’Brien, W. W. Ward, and W. W. Ward, Jr.

Dan S. Lehon, who was injured in the same accident, was awarded a verdict against this same defendant by a jury in the civil district court in the sum of $17,-247.83. This verdict, however, was set aside by the trial judge, who expressed the view that the contributory negligence of Lehon’s chauffeur barred Lehon’s recovery, whether the defendant railway company was negligent or not. This court, in reviewing the Lehon judgment, expressed the samé view. Lehon v. New Orleans Public Service, Inc., 10 La. App. 715, 123 So. 172. When the present case was tried, the testimony in the Lehon case was, by agreement, read in evidence and, with the exception of some testimony by Hogan and his physician as to the extent of his injuries, makes up .the entire record. This case was also tried by a jury, which this time returned a verdict for defendant, which was approved by the trial judge. The jury’s, action here is said to have been influenced by the charge of the judge on the subject of joint enterprise, which, it is contended, had no application to the facts of this case, and it appears to us that such was the situation. In other words we believe that the jury and the trial judge were of the opinion that the present plaintiff was barred because he was engaged in a joint enterprise. The negligence of defendant, therefore, has not been passed on by any court in either case.

The six passengers in the Studebaker automobile in which plaintiff was riding at the time of the accident were situated as follows: Mr. Lehon was on the front seat with the driver; two of the other passengers occupied the áüxiliary seats in the tonneau; and plaintiff was seated on the rear or back seat on the left-hand side, with one of the other passengers, whose name is unimportant, but very likely Mr. O’Brien. Both Hogan and O’Brien were armed for the ’ purpose of protecting a truck belonging to the Lehon Agency, which preceded the Studebaker by several hundred yards, and in which money was being transported for use at a dog track situated near the scene of the accident. In other words, the truck had gone ahead and the Studebaker was following it at a safe distance to circumvent possible highwaymen.

The argument concerning joint enterprise is based upon the fact that Hogan was the superintendent of the Lehon Detective Agency, Inc. His sway over its affairs being co-extensive with the duties of that office, and, as he rather boastfully puts it in his testimony, “over all the works.” We have, therefore, the situation of two officers of the same corporation, one the president and the other the superintendent, albeit the superintendent’s duties at the time of the accident would not indicate high executive authority, since he and O’Brien were merely acting as armed guards protecting the treasure chest in the armored truck which was preceding them.

The automobile was in charge of another employee of the company, the negro chauffeur whose name was Percy Bell. It is the contention of defendant’s counsel that the superintendent in that situation should have asserted himself and should have given such orders to the driver as would have resulted in an avoidance of the accident.

The mission of the Studebaker automobile is said to have been a joint enterprise participated in by its occupants, at least by Lehon and the other employees of his company, and the negligence of one, in this case the driver, must be imputed to all.

We are referred to Blashfield’s Cyclopedia of Automobile Law, vol. 2, page 1149, where, in discussing the nature of the authority of those engaged in joint enterprises, we find it stated that;

“* * * Each must have some voice and right to be heard in the control or management of the undertaking, and the joint enterprise in which the. occupants of an automobile must be engaged before the contributory negligence of the driver can be imputed to the passenger must be one whose nature gives the passenger some voice in the control and direction of the vehicle.”

The industry of counsel, his experience and skill, has failed to. develop any case, and we know of none where an employee of a corporation, in the presence of the president, has been held negligent for failure to assume direction of any enterprise or transaction prosecuted or undertaken in the interest of the company. It seems to us that for Hogan to have attempted to direct the chauffeur of the Studebaker automobile, from the back seat, with Mr. Lehon, the president of the corporation and owner of the automobile, sitting beside the chauffeur on the front seat, would have been presumptuous and insubordinate.

The doctrine of concurrent negligence is thus, stated in volume 45, Corpus Juris, page 1019:

“In, order that the concurrent negligence of a third person can be interposed to shield another; whose negligence has caused an injury to one who was without fault, the injured person and the one whose negligence contributed to the injury must have sustained such a relation to each other, in respect of the matter then in progress, that in contemplation of law the negligent act of the third person was the act of the person injured. Or, as sometimes expressed, they must stand in such relation of privity that the maxim, qui facit per alium facit per se, directly applies.”

Quoting further from pages 1020, 2021:

“The mere fact that two persons are doing something together does not make each chargeable with the negligence of the other, nor does the fact that they have certain plans in common.”

Again on page 1032 we find the following:

“To constitute occupants of a conveyance joint adventurers, there must be not only joint interest in the objects and purposes of the enterprise, but also an equal right, express or implied, to direct and control the conduct of each other in the operation of the conveyance.”

In Wagner v. Kloster, 188 Iowa, 174, 175 N. W. 840, 841, cited in the footnotes, supra, we find the following:

“Parties cannot be said to be engaged in a joint venture or common enterprise within the meaning of the law unless there be a community of interest in the objects or purposes of the undertaking, and an equal right in each to direct and govern the movements and conduct of each other with respect thereto. Each must have some voice and right to be heard in its control or management.”

In Jacobs v. Jacobs, 141 La. 272, 74 So. 992, 993, L. R. A. 1917F, 253, we find the following:

“Negligence on the part of the driver of an automobile is not imputable to his guest in the car; nor does one who accepts an invitation to ride in an automobile' thereby engage in such a common enterprise or joint venture with the driver that neither would be liable to the other for an act of negligence.”

See, also, Daull v. New Orleans Railway & Light Co., 147 La. 1012, 86 So. 477.

“To create the* imputation of negligence the passenger must have assumed control and direction of the vehicle. Merely making suggestions as to the route to be taken, or warning the driver of the danger, does not amount to sufficient authority or control.” 45 C. J., p. 1034, Negligence.

On this point our conclusion is that plaintiff is not chargeable with the contributory negligence of .the chauffeur of the Studebaker automobile.

Plaintiff is also said to have been independently negligent, in that, according to his own testimony, he saw the street car when the automobile was fifteen feet from the track and uttered no word of caution or alarm. With respect to this suggestion we observe that it sufficiently appears from the record that at that time Mr. Lehon, the president of the company, was shouting to the motorman, and, if any warning could have had any effect, it was given.

We now come to .the final question in the case, the negligence, vel non, of the defendant street railway company. The fault imputed to the motorman of the street car consists in the alleged fact that he was not sounding his bell as he approached the crossing, which was a dangerous one; that he was not looking ahead of him at the time; that he entered the paved roadway without having his car under control and without taking such precautions as the dangerous crossing required. There is much testimony in the record and many photographs.

Dealing with the question of whether there was or was not an opportunity to observe the street car at an appreciable time before its appearance upon the paved roadway from the defendant’s right of way, because of the hedge, brush, and trees which are said to obscure the view of motorists, in our former opinion we found that the hedge along the right of way was only three feet high and not an important obstruction to the view. The writer of this opinion has, since the decision in that case —in fact only a short while before the preparation of this opinion—visited the scene of the accident, and is of the opinion that, as it appears, at present, there is little difficulty in seeing an approaching street car from the roadway. But, at the same time, the locality is not a crossing, and the car tracks 'cross the highway obliquely from right to left without any visible indication other than the presence of the tracks in the roadway to suggest the danger involved. The situation is one which imposes upon the railway company, as^well as upon the drivers of vehicles on the highway extraordinary care.

Defendant’s motojman claims to have sounded his -bell as he approached the highway, and in this he is corroborated by the conductor and by a negro passenger, who was in the car at -the time. He was moving at the rate of from five to eight miles per hour and described his entry into the roadway as. follows:

“A. Well, I first looked towards New Orleans and then I looked back toward Jefferson Parish side and, when I looked towards New Orleans seeing these automobiles was a sufficient distance from my car to allow me to cross, I continued to move on and looked back towards the Jefferson Parish line and, when I looked that way I didn’t see anything to interfere with my crossing. I looked back again to the New Orleans side and that is when I saw this automobile coming.”

In another part of his testimony he says that he saw the Studebaker when between eighty and one hundred feet distant, and that he estimated its speed at from forty to fifty miles per hour. Two witnesses, occupants of an automobile which approached the crossing just ahead of the Studebaker, Shillinger and Neilson, both of whom were put upon the stand by the defendant corporation, testified that they heard no gong. All of the other witnesses, with the exception of the negro passenger, the conductor and the motorman, testified to the same effect.

Under the circumstances, particularly since two of the witnesses of defendant are in accord with all of the witnesses of the plaintiff, our conclusion is that the motorman failed to sound his bell or gong.

Both Shillinger and Neilson were disinterested witnesses and had an unusual opportunity for observation. Shillinger, who was very familiar with the crossing, since he passed there three or four times a day, testified that he had narrowly avoided an accident at that point on three or four occasions because of the habit of street cars entering the roadway without sounding their gong.

Neilson testified that the motorman was looking backward as he entered the roadway. In fact, the motorman admits that he was looking back “towards the Jefferson Parish Line.”

It is evident that the motorman was not maintaining a proper lookout. Moreover, if he saw the Lehon car approaching very rapidly when eighty or one hundred feet away, as he claims he did, he1 should have immediately applied his brakes and stopped his car, which he could have done almost instantly at the rate of speed he was maintaining, which was from five to eight miles per hour. He apparently made no effort to stop his car before the accident. We conclude that defendant was- guilty of negligence.

The plaintiff sustained a Colle’s fracture of the distal end of the radius bone of the right wrist with upward and backward displacement. His wound was infected, which, together with the necessary-splinting and casting, caused him considerable pain. He was unable to use his hand for several months, gradually regaining practically complete and normal function. In addition to the wrist injury he suffered a gash on his left shin and smaller contusions and abrasions. Plaintiff’s injuries were painful, but not permanent. We are of the opinion that $1,500 would be an appropriate allowance.

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment be reversed, and that there now be judgment in favor of the plaintiff, Clarence V. Hogan, ahd against the defendant, New Orleans Public Service, Inc., in the sum of $1,500, with legal interest thereon from judicial demand until paid, and with all costs.