
    Adam DUFRENE et al. v. DIXIE AUTO INSURANCE CO. et al.
    No. 9487.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Rehearing Denied Dec. 15, 1978.
    
      Hackman & Lewis, Gordon Hackman, Boutte, for plaintiffs-appellants.
    Alexander C. Cocke, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, GULOTTA and BEER, JJ.
   BEER, Judge.

The incident which gives rise to this litigation occurred on February 14, 1972, on old Highway 90 in St. Charles Parish, Louisiana. Suit was filed in behalf of the minor, Lynell Simmons, whose injuries were alleged to have been the result of the negligent operation of a motor vehicle by appel-lee, Butts. The case was originally tried in September of 1975, but the transcription of the testimony was lost and, thus, a new trial granted, so that the matter was retried on October 12, 1977.

Following the new trial, judgment was rendered dismissing plaintiff’s suit, resulting in this appeal.

A determination on our part that the trial court has not manifestly erred in concluding that the driver, Butts, was not negligent or that his negligence, if any, was not a proximate cause of the accident resulting in injuries to Lynell Simmons effectively obviates our need to consider other aspects of this litigation. We turn our attention to that issue.

The record very positively supports certain factual conclusions:

1. Butts was driving on Highway 90 at a rate of speed between 35 and 40 mph.

2. He saw Lynell Simmons on her tricycle with two other children either following very closely behind her or, perhaps, pushing her on the tricycle when he was approximately 200 feet from them.

3. He was proceeding on one side of the road and they were proceeding on the other side of the road so that, at all times pertinent and until the split second before the accident, his automobile would have passed Lynell on her tricycle, and the two children following directly behind her, without any sort of collision.

4. Just at the moment that the Butts’ vehicle was about to pass, Lynell either swerved and pedaled across his path or was pushed and then swerved across his path.

5. Butts — thus confronted — swerved to avoid the accident, but it was too late and Lynell was struck; the Butts car, then pretty much out of control, went off the road and struck a building located in close proximity.

From these facts, we conclude that Butts, who acknowledges seeing the children 200 feet ahead, had sufficient time to reduce his speed. However, we further conclude that such reduction would not have prevented the accident from taking place since the speed of Butts’ ear was not a proximate cause of this accident. The sole proximate cause of the accident was the negligence of Lynell and/or her playmates, as previously described.

Even were we to conclude that Butts’ negligence was a proximate cause of the accident, the claim in behalf of Lynell would be barred by contributory negligence. Though apparently burdened with a learning disability which reduces her intellectual capacity to some extent, Lynell was 12 years of age at the time of the accident and, thus, legally capable of contributory negligence. We find no basis on the facts before us to apply the restrictive rationale of Baumgartner v. State Farm, 356 So.2d 400 (La.1978), which deals with a pedestrian-automobile situation. We find no basis for the Baumgartner rationale to be extended to cyclists- — whatever type or kind be their mode. To do so, would (as noted by the Chief Justice) provide that drivers of all those type vehicles are charged with a lesser duty to protect themselves than another driver who happens to be operating an automobile. Furthermore, the majority opinion in Baumgartner, adopting the “humanitarian doctrine,” specifically restricts its application to “pedestrian-motorist cases.”

Accordingly, the judgment is affirmed.

AFFIRMED.

GULOTTA, J., dissents.

GULOTTA, Judge,

dissenting.

I respectfully dissent. Butts’ failure to reduce his speed after having observed the tricycle-riding child on the highway, violated the duty imposed upon him as a prudent driver. Furthermore, applying Baumgartner v. State Farm Mutual Automobile Ins. Co., 356 So.2d 400 (La.1978), I am led to conclude that the child’s action in this case does not constitute a bar to recovery.

In this accident, two older boys, one nineteen and one older than the injured child, were pushing an inverted, makeshift tricycle on which the child was riding on the westbound traffic lane of the highway. If the child’s testimony is accepted, he was being pushed in a westerly direction in the westbound traffic lane in the direction of the automobile driver. If we accept the driver’s testimony, the child was being pushed easterly, in the same direction as the driver, but in the westbound traffic lane. According to the driver’s deposition, when he first saw the boys on the bike they were a “long way” from him. In his testimony, the driver stated that when he first saw the kids they were “a couple of hundred yards away.” At a distance of approximately thirty feet from the approaching Butts automobile, the tricycle-riding child was either pushed or came immediately into the path of the approaching car. Butts swerved to the right, off the highway, but unavoidably struck the child and careened onto the right shoulder and into the yard of an adjacent property owner, striking the property owners garage.

The trial judge, in written reasons, concluded that the injured child and the two persons pushing the child on the tricycle, were “negligent and their negligence was the proximate cause of the accident.” The trial judge went on to state that Butts was driving at a prudent rate of speed and acted as a reasonable driver when faced with a sudden emergency.

I am in agreement with the trial judge that, when confronted with a sudden emergency, Butts acted as a reasonable and prudent driver. However, as a matter of law, I disagree with the trial judge, in his conclusion that Butts was proceeding at a prudent rate of speed before the child came into the path of his automobile.

A duty is placed upon an automobile driver when observing children, either on the highway or in the immediate vicinity of the highway in a precarious position, to reduce his speed to such extent that he can bring his automobile to a controlled stop in the event of an unforseen occurrence. Kelly v. Messina, 318 So.2d 74 (La.App. 4th Cir. 1975).

When Butts observed, “a couple of hundred yards away”, the child on the tricycle, it became incumbent upon him to reduce his speed considerably from the thirty-five to forty miles per hour speed at which he was traveling. Nevertheless, admittedly, Butts did nothing to reduce that speed. I conclude, under the circumstances, that the automobile driver’s failure to do so constituted negligence which resulted in the child’s injury.

In a pedestrian-automobile accident case, the Louisiana Supreme Court in Baumgartner v. State Farm Mutual Automobile Ins. Co., supra, stated:

“The operator of a motor vehicle, a dangerous instrumentality, has the constant duty to watch out for the possible negligent acts of pedestrians and avoid injuring them. A higher standard of care than that required of pedestrians is imposed upon the motorist commensurate with the hazards his conduct inflicts upon the public safety. Therefore, he should not be able to escape responsibility for injury to the pedestrian by pleading the latter’s negligence. And since, in such case, a plaintiff’s contributory negligence will not bar his recovery, the last clear chance doctrine, used to avoid the harsh effects of the contributory negligence defense, is not at issue.”

Applying the Baumgartner decision to our case, I conclude plaintiff’s contributory negligence is not a bar to recovery.  