Seligman v. Holladay , 154 So. 481 ( 1934 )

The child in the case was hidden from the view of the motorist by the milk wagon until the boy driving the car saw her leaving the curb. From that instant on the car and the child were equally in plain view of each other. The law imposes the same duty on each to keep a lookout. The boy saw the child and immediately applied his brakes until they screamed, in an effort to avoid hitting the child. The child negligently failed to see the car, made no effort to avoid it, but continued to skip or run heedlessly across the street, up to the very instant it was struck. The accident did not occur at an intersection. The motorist had no reason to anticipate the presence of the child.

Such conduct on the part of a pedestrian is the grossest negligence, and that negligence was a proximate cause of the accident. Owens v. Tisdale (La.App.) 153 So. 564.

It constituted contributory negligence on the part of the child, who was almost 8 years of age and unusually bright. Lynch v. Knoop, 118 La. 611, 43 So. 252, 8 L.R.A. (N.S.) 480, 118 Am. St. Rep. 391, 10 Ann. Cas. 807; Downey v. Baton Rouge Electric Gas Co., 122 La. 481, 47 So. 837; Cusimano v. New Orleans, 123 La. 565, 49 So. 195; Pilsbury v. O'Keefe,1 La. App. 493.

In Owens v. Tisdale, supra, a pedestrian struck by an automobile, which he failed to see or hear, though it was in plain view not far away when he started across the street from behind a truck, was held guilty of such negligence as would bar recovery.

In Elmendorf et al. v. Clark, 143 La. 971, 79 So. 557, 560, L.R.A. 1918F, 802, the court found the defendant guilty of negligence per se in that he allowed his car to be operated by a chauffeur under the legal age, who was himself guilty of negligence per se in that he failed to sound his horn as required by ordinance, yet held: "Upon reconsideration of this case, we have concluded that the accident resulting in the death of plaintiff's child was attributable more to the negligence of the boy than to that of the defendant, if not entirely to the negligence of the boy in running out into the street from the sidewalk in the middle of a block right in front of the automobile." Ferrand v. W.H. Cook Co., 146 La. 17, 83 So. 362.

In Hargus v. New Orleans Public Service, Inc., 9 La. App. 117,118 So. 847, 851, we find: "But, even if the car was running fast, its speed does not diminish the negligence of the deceased child. The car was coming in open view to her sister and to all the other witnesses. To attempt to cross in front of it was the height of imprudence on her part."

Conceding that the child in the present case is shown to be capable of contributory negligence, I cannot agree with the finding of my brothers that the sole proximate cause of the accident was the speed of the car. As shown by the above citations, she was guilty of gross negligence which was a proximate cause of and contributed to the accident, barring recovery in this case.

For the above reasons, I respectfully dissent.