
    Richard Price YATES, SR., et al. v. John BROWN et al.
    No. 7901.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.
    Rehearing Denied April 13, 1977.
    Writ Refused June 3, 1977.
    
      Wendell H. Gauthier, Robert M. Murphy, Gauthier & Murphy, New Orleans, for plaintiffs-appellants.
    John J. Weigel, John G. Gomila, Jr., Jones, Walker, Waechter, Poitevent, Car-rere & Denegre, New Orleans, for defendants-appellees.
    Before REDMANN, STOULIG and BOU-TALL, JJ.
   REDMANN, Judge.

A father appeals from the dismissal on jury verdict of his suit for damages from the tragic death of his seven-year-old son. The issues are largely of inferences to be drawn from the evidence. We affirm.

The child was run over by a soft, drink truck which had been parked on a sidewalk making a delivery at about 6:45 p. m. March 7, 1974. The evidence supports no other conclusion than that the child was not in front of the truck until an instant before it moved. The evidence also supports a conclusion (although not so conclusively) that the child had been under the parked truck until just before (“about two seconds later”?) it started, and (less conclusively) that the child attempted to get out and barely managed to stand on the curb in front of the truck (though too short to be seen from its cab) before it moved and rolled over him: and we conclude these must have been the conclusions of the jury (although it may have rejected the testimony of the witness who said he saw the child standing “on the edge of the curb . in the process of being hit” but also testified the child was not visible near the truck just before it was hit).

Appellant complains that “under the duty-risk analysis, negligence is apparent.” Appellant refers to the truck driver’s duty not to park on the sidewalk. First, although we recognize that the truck’s being above the child was as much a cause-in-fact of the accident as was the child’s being under the truck, and that the truck’s presence in the child’s vicinity was in that sense a cause-in-fact of the accident, we conclude that parking on the sidewalk (as opposed to parking on the street seven feet away) was not shown to be a cause-in-fact of the accident. There is no evidence explaining the youngster’s being under the truck, but it is unthinkable that he got under the truck in order to use the sidewalk, or because he could not use the sidewalk. (There was ample room between sidewalk and building for anyone to pass.) Presumably he got under the truck because he was attracted by something under it, either its own mysteries or something such as a dropped coin or the like. Thus his presence under the parked truck is in no way related by the evidence to the truck’s being parked on the sidewalk rather than immediately adjacent to the sidewalk. We cannot say that but for the truck’s parking on the sidewalk the accident would not have occurred. (Compare Dixie Drive It Yourself Sys. v. American Beverage Co., 1962, 242 La. 471, 137 So.2d 298, and Pierre v. Allstate Ins. Co., 1970, 257 La. 471, 242 So.2d 821, in each of which but for the parking of a vehicle on the highway the collision with a vehicle travelling on the highway would not have occurred.) Had a pedestrian walked in a roadway (or a child walked under the parked truck) because of a parked truck’s preventing passage along the sidewalk, we might conclude that the improper parking caused the pedestrian’s presence in the roadway (or the child’s presence under the truck) and therefore was a cause-in-fact of an injury to the pedestrian (or child) there occurring; but we cannot similarly reason here that the truck’s being simply on the sidewalk (rather than next to it) caused the child to go under the truck and thus caused his fatal injury. Second, we conclude that the risk of children’s crawling under vehicles is not a risk intended to be avoided by ordinances (or common sense) proscribing parking on sidewalks. The most evident purpose of the duty not to park on sidewalks is to preserve those walks for walkers, so that pedestrians need not travel in the roadway, endangered there by moving vehicles. In any event, as we have first noted, the location of the parked truck on the sidewalk was not shown to be a condition, a sine qua non, a “but for”, and in that sense a cause of the child’s injury.

Appellant also complains of the trial judge’s refusal to admit into evidence a policeman’s diagram of the truck’s location prior to the accident. This refusal was harmless, if error at all. Despite great effort to fix with mathematical precision the location of the truck, no one suggested anything other than that the truck had three of its four wheels off the street and that the truck was almost entirely parked over the curb and sidewalk. Appellant does not suggest any material difference in the evidence had the diagram been admitted.

Appellant also complains of the trial judge’s refusal to charge the jury that a seven-year-old child is incapable of contributory negligence in the absence of a showing of extraordinary conditions (as held in Jackson v. Jones, 1953, 224 La. 403, 69 So.2d 729). The trial judge did err in charging instead a test like that of Simmons v. Beauregard Parish Sch. Bd., La.App. 3 Cir. 1975, 315 So.2d 883, 888, writ refused La., 320 So.2d 207 (a case of a 13-year-old). However, the jury indicated, by asking whether it might award funeral costs despite a finding of no negligence on defendant’s part, that this erroneous charge was not a basis for its result. We therefore conclude this error was harmless.

Appellant’s final complaint is the general one that the verdict is contrary to the law and the evidence. To the virtually undisputed facts already recited we add that the child had been seen by the defendant driver when he first parked, at which time he promised him a soft drink on completion of the delivery. Delivery took 30 minutes or more during which the boy ran in and out of the store to which the delivery was being made. At the end of the delivery the driver looked casually for the child but did not see him. Immediately before ascending the truck to leave, the driver walked from the passenger’s side behind the truck to the driver’s door, and his helper walked from the driver’s side in front of the truck to the passenger door, and the child was not seen by either. Appellant urges that, having seen the child earlier, the driver had the duty of the highest degree of care, which would oblige him to look under the truck. We agree that a driver who has seen a child in the immediate vicinity of his truck and has by a promise of a soft drink enticed the child to stay near the truck, and who moreover has parked his truck on the sidewalk (where children are supposed to be), has an obligation of greater care than a driver parked in the street who has not seen children in his vicinity. However, we reason that the extent of the obligation to the child depends upon such factors as the child’s apparent age and discretion. Perhaps the recently-noted presence of an unattended infant, a year or two old, would require a driver to look under his parked vehicle for the infant before moving. We cannot, however, rule that having recently seen a seven-year-old child in the vicinity obliges one who is about to move a parked vehicle to anticipate that the child would have crawled under the vehicle, and therefore to look under the vehicle for the child before moving. We cannot say the jury verdict is contrary to the law and the evidence.

Affirmed.

BOUTALL, Judge,

dissenting.

A seven year old boy was run over and killed by a Coca-Cola delivery truck as it started up from its parking place across a sidewalk where it had been parked making a delivery. There is no basic dispute as to any fact except the whereabouts of the child as the truck pulled off. Since this was a jury trial, there is no finding of fact, but it may be presumed, from the comments of the foreman in asking the Judge for additional instructions, that the jury found no negligence on the truck driver. I disagree and find manifest error in fact and in law.

First, I am of the opinion that the truck was illegally parked upon the sidewalk. The truck driver testified that as he approached this area to make a delivery, he pulled off of the Galvez Street roadway across the curbing and onto the sidewalk so that he stopped roughly parallel to the roadway with his right wheels blocking most of the sidewalk, his left front wheel being across the curbing and his left rear wheel (a dual wheel,) with one wheel in the street and one on the curbing. He parked in this fashion to make a delivery, not because it was any emergency, but for convenience in making the delivery, and noted that his delivery instructions (this was his first time for a delivery in this location) indicated that he should park along the side of the store, in this fashion. Under these facts, he is in violation of the City Ordinance prohibiting parking on the sidewalk. Presuming that the test of negligence to be applied in such a case is the action of a reasonably prudent man, it is suggested that when leaving such a parking position, a reasonably prudent man must consider that moving this heavy vehicle in an area reserved for pedestrians, he must certainly exercise a greater degree of care than when he moves his vehicle in the street which is designated primarily for use by such vehicles.

However, under the facts as here, he faces an additional factor which requires an even greater degree of care, that is, the presence of a young child. The driver testified that after he stopped to make the delivery he was approached by the young boy who asked him for a Coke, and he promised that he would give the boy a Coke after he finished the delivery if the boy would hold the door open for him while he made the delivery. The delivery took much longer than expected, and when he left the premises to get into the truck, he did not see the boy around, although he testified he looked for him and asked his assistant if he saw the boy around. Of great importance is his testimony that he expected the boy to be present, because in general when children ask for a Coke and are promised one, “* * * they don’t leave. They stay there.” It should also be pointed out that his testimony that he inquired of his helper as to the whereabouts of the young boy is denied by the helper, who was not aware of any necessity to see if the boy was around. It is well settled that children are owed a high degree of care by a motorist when the motorist is aware of the child’s presence or should be under the circumstances. Under the facts outlined above, this driver owed a high degree of care to ascertain the whereabouts of the child whom he fully expected to be there, and his actions are in violation of the ordinary reasonable care to be taken in such circumstances. Schmeltzer v. New York Fire & Marine Underwriters, Inc., 215 So.2d 133 (La.App. 3rd Cir. 1968); Burnaman v. LaPrairie, 140 So.2d 710 (La.App. 3rd Cir. 1962).

The majority opinion states that the evidence supports no other conclusion than that the child was not in front of the truck until an instant before it moved, and that probably the child had been undér the parked truck until just before it moved. We have no way, of course, of knowing what factual determination might have been made by the jury. Three eyewitnesses testified as to seeing the boy at the time of the injury. These witnesses were occupants of vehicles stopped on Galvez Street waiting for a change in signal light and consisted of the driver and passenger of a pickup truck, who were approximately across the street from the delivery truck, and the driver of an automobile several cars back, who was thus in a position to see in front of the delivery truck. The two witnesses in the pickup truck first noticed the boy when he was beneath the delivery truck, and there is some confusion in their testimony as to whether the truck was moving or not when first seen. Certainly a finding that the truck was not moving could not be reversed by this court on their testimony alone, although the testimony of the driver is such as to lead me to believe that the truck was already moving, and the boy was hurt because he was “flopping” around under the truck at the time of original observation, and was right at the rear of the cab. However, the testimony of the driver of the vehicle several cars back, Charles Bosch, positively places the boy in front of the truck at the time that the truck is pulling off. Unless his testimony is disregarded as unworthy of belief, and there is nothing in the record to suggest that it is wrong, the boy was in front of the truck, in a position where because of the heighth of the vehicle and the position of the driver, it was difficult for the driver to see him. It should also be pointed out that the location of the boy’s body after the accident would corroborate this placement of the boy.

As to how this boy got in front of the truck, we can only speculate. The testimony of the driver and his helper is that they passed around the front of the truck and that the boy was not there at the time they entered the truck. The testimony in general indicates that while the delivery men were making their delivery the boy had been playing in the area, and it is observed that his home is only 50 feet from the accident site. I do not consider the speculation as to how the boy came to be in front of the truck is necessary to a solution of this case. A person driving a vehicle on the sidewalk, who expected the child to be in the area, must be held negligent for striking him.

I respectfully dissent.  