
    Wilbert KIMBALL, Plaintiff and Appellee, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY et al., Defendants and Appellants.
    No. 1032.
    Court of Appeal of Louisiana. Third Circuit.
    Feb. 18, 1964.
    Rehearing Denied March 11, 1964.
    Dubuisson & Dubuisson, by James G. Dubuisson, Opelousas, for defendants-appellants.
    John D. Edwards, Opelousas, Morgan J. Goudeau, III, Opelousas, for plaintiff-ap-pellee.
   HOOD, Judge.

This is a tort action instituted by Wilbert Kimball, individually and as administrator of the estate of his minor son, Keith, arising out of an accident in which plaintiff’s son, while riding a bicycle, was struck by a pickup truck being driven by defendant, Richard Lowery. The suit was instituted against Lowery, his employer and the employer’s public liability insurer. After trial on the merits, judgment was rendered in favor of plaintiff. Defendants have appealed. The principal issue presented on this appeal is whether the accident was caused by the negligence of defendant Lowery.

The accident occurred about 4:00 p. m. on September 18, I960, on a narrow, country, graveled road in St. Landry Parish, at a point where the private driveway leading from the home of Mrs. Allen Hudspeth, located on the east side of the road, intersects or enters that thoroughfare. Just prior to the accident defendant Lowery was driving his employer’s pickup truck in a northerly direction along this road at a speed of about 35 miles per hour. As he approached the place where this private driveway enters that road a 12-year-old boy, Van Hudspeth, while riding a bicycle suddenly darted out onto the road from this driveway in front of the truck. The truck was between 110 and 130 feet south of the driveway when young Hudspeth emerged from it onto the road. Lowery applied his brakes immediately and reduced the speed of the truck, but he let up on his brakes after he determined that the boy had safely crossed the road in front of the truck. After leaving the driveway, young Huds-peth turned to his left, and while traveling south on the graveled road he met and passed the Lowery truck when the truck reached a point about 55 feet south of the driveway.

Shortly after Van Hudspeth and the truck had passed each other, and about the moment Lowery released the brakes of the truck, plaintiff’s 7-year-old son, Keith, then also emerged suddenly from the same driveway onto the road while riding on a bicycle. As soon as Lowery saw young Kimball about to enter the highway on his bicycle he immediately applied his brakes forcefully and turned to his left in an effort to avoid a collision. The boy turned to his left after entering the road, and the bicycle collided with the left front portion of the truck The collision occurred at a point in the center of the road, about four or five feet south of the projected south line of the driveway. The wheels of defendant’s vehicle skidded a distance of about 20 feet before it stopped, but the truck was brought to a complete stop within four or five feet north of or beyond the point of impact. When it came to rest, the front of the truck was about even with the south line of the driveway.

Because of heavy shrubbery located on the south side of the driveway and near the graveled road, it was impossible for Lowery to have seen the bicycle and its rider approaching the intersection until the bicycle reached a point about 19 feet from the east edge of this narrow road. Immediately prior to the time the accident occurred the two boys, Keith and Van, had agreed to “race” each other on their bicycles from the place where they were playing on the Hudspeth driveway to the Kimball home which was located about 300 yards south of the driveway and on the opposite side of the graveled road. After making this agreement, both boys ran to their bicycles, but young Hudspeth reached and mounted his first and he immediately rode out of the driveway onto the road. Plaintiff’s son, having been delayed somewhat in getting to his bicycle because he had left it several feet farther from the road, reached and mounted his bicycle shortly after Van had left, and he then pedalled furiously down the driveway toward the road in an effort to catch up with his playmate. The accident occurred just after the younger boy emerged from the driveway onto the road.

Although there is some contention that young Keith stopped before entering the gravel road, we think the evidence shows that he neither stopped nor materially reduced his speed after mounting his bicycle and starting to race. Actually, considering the speed of the truck and the distance it was from the ,driveway when the older boy first entered the road, it is apparent that not more than three or four seconds could have •elapsed between the time the first bicyclist •emerged from the driveway and the time of the accident. Young Keith, therefore, after being delayed initially in getting to his bicycle, obviously did not have time thereafter to bring his bicycle to a stop, and then :start it again and travel more than half way across the road and a few feet south ■of the driveway before the accident occurred, as contended by plaintiff.

We think the evidence supports Lowery’s testimony that he reduced the speed of his truck immediately after the older boy first ■emerged from the driveway, and that the truck was traveling at a speed of from 20 to 25 miles per hour at the time young Keith later entered the road. Also, we think Lowery was correct in his estimate that his truck was about 30 to 40 feet from the intersection when he first saw young Keith .approaching the road on his bicycle. This last conclusion is based on the fact that the truck was 55 feet from the intersection when it met and passed the Hudspeth boy, that young Kimball did not enter the road until after Van had completely passed the truck, and the accident did not occur until Van had reached a point about 110 feet ■south of the driveway.

We think the applicable law is stated in Layfield v. Bourgeois, La.App. 3 Cir., 142 So.2d 799, as follows:

“.+. * * a motorist who sees or should see children near the roadside, must exercise a high degree of care in view of the propensity of young children to dart or run into the street, heedless of their own safety. This rule implies that when a motorist sees or should see a child near the roadside, he must anticipate that the child might suddenly dart into the street. Consequently, the motorist must bring his vehicle under such control that he can avoid injuring the child, notwithstanding its youthful indiscretion. (Citations omitted). On the other hand, a motorist is not an insurer of the safety of children playing near the street. If the motorist is proceeding at a lawful and reasonable speed and obeying all of the rules of the road as to proper lookout etc. he will not be held liable where a child suddenly darts or runs into his path from a concealed position in such a manner that the motorist is unable to avoid striking the child. (Citations omitted.)”

This accident occurred on a rural road, and we assume that the statutory speed limits for such roads apply, since there is no showing to the contrary. Lowery was operating his truck at a speed of 20 to 25 miles per hour, which was far below the legal speed limit, at the time plaintiff’s son suddenly darted into the road ahead of him. In our opinion Lowery was proceeding at a lawful and reasonable speed at that time. We cannot agree with plaintiff or the trial judge that since the older boy had suddenly emerged from that driveway a few mo-, ments earlier, Lowery should have been put “on notice” that “there was the possibility that there was someone else coming out of the said driveway.” We do not think the presence of one child on a bicycle in a rural area necessarily indicates that there are others on bicycles in the same area. But, assuming that Lowery should have anticipated that there would be other bicyclists in that vicinity, we think he exercised reasonable care in reducing his speed to 20 or 25 miles per hour.

Plaintiff strenuously contends, however, that Lowery was not maintaining a proper lookout and that he did not see young Keith as soon as he should have seen him. It is argued that if Lowery had seen the boy as soon as he emerged from behind the shrubbery located 19 feet east of the road he could have stopped and thus avoided the accident. Lowery testified that “I saw him the instant he came from behind the bush,” that “he came from behind that bush and he might as well been behind a wall,” and that “I saw him the minute he came from behind that bush while he was still behind the fence.”

It is true, as pointed out by plaintiff, that Richard Coleman, a passenger in the Lowery truck, did not see young Kimball until he was in the road, at which time Coleman said, “We didn’t have a chance in the world of stopping.” Robert Jamison, the only other eyewitness to the accident besides Lowery and Coleman, also did not see young Kimball until he entered the road, but Jamison was approaching the scene from the north and his view of the driveway was completely obstructed until the bicycle reached the road, so he could not have seen the boy before that time. He stated that “all at once that boy drives off the driveway right on in front of that truck. — was no way for him not to hit him, he could have been driving five miles he would have hit him. — .” In our opinion the fact that the passenger in the truck with Lowery did not see the bicycle until it emerged from the driveway does not disprove Lowery’s statement that he did see the boy before that instant, and we think the physical facts support Lowery’s testimony that he saw the boy as soon as it was possible for him to do so.

As we have already pointed out, Lowery was traveling at a speed of about 35 miles per hour when the first bicycle rider suddenly came out of the driveway. He was between 110 and 130 feet from the driveway at that time and he brought his truck to a complete stop within that distance. According to a number of frequently used stopping distance charts, it appears that almost all of that distance would be required in order for Lowery to bring his truck to a stop after he observed the first boy enter the road ahead of him. See Blashfield Cyclopedia of Automobile Law and Practice, Vol. 9C, p. 413 (73 feet at 30 mph, 115 feet at 40 mph); Am.Jur.2d, Desk Book, Doc. 176, p. 456 (145 feet at 35 mph); Traffic Institute, Northwestern University, May, 1957, Exhibits 9 and 10, pp. 15 and 16 (117 to 131 feet at 35 mph) ; and Tulane Law Review, Vol. XIV, p. 502 (68.3 to 183 feet at 30 mph, and 106.7 to 310.7 feet at 40 mph, depending on conditions). Since Lowery was driving a truck and was on a gravel road his minimum stopping distance was perhaps greater than would be that for art automobile on a hardsurfaced highway. Yet, the evidence shows that Lowery brought his truck to a stop as soon as he could reasonably be expected to do so after the first bicyclist came into his view.

Also, as has already been pointed out, Lowery was 30 or 40 feet from the driveway and-was driving at a speed of 20 to 25 miles per hour when the second bicycle rider came into his view. According to the same stopping distance charts, it appears that Lowery brought his truck to a stop as soon as he could reasonably be expected to do so after he saw or should have seen young Kimball approaching the road.

Even if we disregard the distance within which Lowery brought his truck to a stop and assume that he should have known that young Kimball was going to emerge out of the driveway ahead of him, we think he completely exonerated himself from negligence by bringing his truck to a complete stop before it entered the intersection of the road and the driveway. We have already pointed out that the collision occurred four or five feet south of the intersection, before Lowery’s truck had reached the south line of the driveway.

Under the facts presented here, we think the trial court erred in finding that defendant Lowery was negligent and in holding that defendants are liable for the damages sustained by plaintiff as a result of this accident. In view of this conclusion it is unnecessary for us to consider the plea of contributory negligence filed by defendants.

For the reasons herein set out the judgment appealed from is reversed and judgment accordingly is rendered in favor of defendants and against plaintiff, rejecting plaintiff’s demands at his costs. The costs of this appeal are assessed to plaintiff-appellee.

Reversed.

TATE, Judge

(dissenting).

I respectfully dissent.

If the accident took place as the majority reconstructs it, then of course the defendant driver could not reasonably have stopped in time to have avoided the accident. The trial court drew a different inference from the evidence, however, under which the defendant Lowery had more time .■and opportunity to observe the 7-year old boy bicycling towards the roadway and to avoid the accident, as a result of which the motorist breached the extremely high standard of care owed by him to young ■children near the roadway.

I personally do not think the trial court was manifestly erroneous in its appreciation to this effect of the facts.

But I dissent primarily because, even under the majority’s own appreciation of the facts, it committed error as a matter of law in failing to hold the motorist to the •duty of extraordinary care owed by him -to a child whom he observes near or approaching the roadway. Had the motorist ■simply sounded his horn when he says he first saw the child, the accident would have ibeen avoided.

I.

Before going into the facts of the present •case, we should advert briefly to the jurisprudence concerning this duty.

As the majority notes, a motorist is not negligent if a child suddenly darts into his path from a concealed position, when the motorist could not reasonably have anticipated the child’s presence near the roadway. Layfield v. Bourgeois, La.App. 3 Cir., 142 So.2d 799. However, as that opinion also notes, if a motorist does see or reasonably should see children near the roadway, he owes them not merely the duty of ordinary care, but instead the duty of a very high degree of care, i. e., extraordinary care.

As stated in the early leading case of Albert v. Munch, 141 La. 686, 694-695, 75 So. 513, 515, L.R.A.1918A, 240, where a chauffeur and his employer were held negligent for failing to take evasive action when they saw children ahead, “The first precaution that should have been taken ivas to give warning of their approach * * *. The next precaution should have been to slow down the automobile, so that in no event or situation that was conceivable to its occupants could they kill the boys. * * * ” (Italics mine.) See also Guillory v. Allstate Insurance Co., La.App. 1 Cir., 96 So.2d 866, certiorari denied as to merits, although granted as to costs.

As this court itself recently observed in Burnaman v. La Prairie, 140 So.2d 710, 711, certiorari denied, holding a motorist liable for failure to observe the duty of extraordinary care owed toward children, “It is clear that under the Louisiana jurisprudence the operator of an automobile has a duty demanding a high degree of care if children (who are unaccompanied by their parent and not under the care of an adult) are in the vicinity and he knows of their presence or is held to know of their presence as a matter of law.”

A good summary of the Louisiana rule and the reasons for it is found in Peperone v. Lee, La.App.Orl., 160 So. 467, 468: “ * * * when children are seen on the side of a road, an approaching motorist must anticipate childish actions, as, for example, the sudden running across the road * * *. In a word, the presence of children on or near a highway imposes upon a motorist the duty of exercising extraordinary care and every reasonable precaution must be taken to avoid injuring them. Children * * * are properly the subject of public solicitude, and the law requires that those who operate such dangerous instrumentalities as automobiles in their vicinity must do so with the utmost care. :|c *

See also 3 West’s Louisiana Digest, Automobiles, 162(1) for multitudinous other citations to the same effect.

Also, there can be no issue that contributory negligence bars recovery in this case. At the time of the accident, young Keith was seven years and ten months old, and he was also, as the trial court found, very small and delicate for his age.

Under the law of Louisiana, a child under eight years of age is ordinarily incapable of contributory negligence (Jackson v. Jones, 224 La. 403, 69 So.2d 729), although a child of eight years and over may be old enough to fall within the rule of contributory negligence (Lynch v. Knoop, 118 La. 611, 43 So. 252, 8 L.R.A.,N.S., 480) ; however, even if it has been established that a child is capable of contributory negligence, such negligence is nevertheless not measured by the same standard applied to an adult, but must be judged in accordance with the individual child’s experience, understanding, age, and intelligence (Plauche v. Consolidated Companies, 235 La. 692, 105 So.2d 269). See also: Danna v. London Guarantee & Accident Company, La.App. 2 Cir., 147 So.2d 739; Guillory v. Allstate Insurance Co., La.App. 1 Cir., 96 So.2d 866; Annotation, “Contributory Negligence of Children”, 174 A.L.R. 1080, especially: 1106, 1128, 1134 (Louisiana references).

We have in this dissent repeated and emphasized these legal principles applicable, for one purpose only, namely: To illustrate that, whatever conscious or unconscious sympathy we may have for the understandable actions or inactions of the motorist under the circumstances, nevertheless the only question before us, as a court of law, is whether, after the motorist saw or should have seen the child approaching the roadway, did even the slightest negligence on the motorist’s part contribute to the accident? If so, he is liable, for he violated the duty of extraordinary care owed to the child under such circumstapces.

II.

The trial court found, and apparently the majority agrees, that the motorist’s duty to observe young Keith bicycling towards-the roadway arose when this 7-year old boy appeared from behind a large bush at the fence line. At any rate, the defendant Lowery testified positively that he saw the boy just as soon as he emerged from behind the bush. Tr. 144, 148, 158.

According to the defendants’ surveyor, this bush was 23 feet from the edge of the roadway, at the end of a ramp or bridge across the driveway. Tr. 170. According-to all the witnesses, motorists approaching from the south as was the defendant Lowery, had a clear view of this entire ramp-way, from a distance down the roadway of 300 feet and more.

As the majority found, the boy was struck in the center of the roadway, which according to the defendants’ surveyor had a total width of 19 feet. Tr. 162. This-means, of course, that the very small boy bicycled about 33 feet on gravel (the ramp plus half of the road) before the defendants’ truck struck him.

Lowery testified that he collided with the boy’s bicycle at a point 4 feet south of the ramp, near the center of the road. Tr. 146.

The two other witnesses to the accident (the seriously injured boy did not know where he was struck) testified that the collision occurred in the center of the road, approximately even with the south edge of the ramp, and that the truck stopped immediately. Tr. 170, 213. These witnesses further testified that the bicycle was right under the truck bumper at the time the truck stopped, Tr. 120, 213, one of them indicating that if the truck had skidded the least little distance further the boy would have been run over and probably killed. Tr. 213.

A photograph of the bicycle taken immediately after the accident is in evidence. P-6. It shows that the bicycle was bumped and not run over, which seems to verify the testimony of these witnesses that the defendants’ truck stopped approximately instantly with the collision, without skidding further.

It is actually immaterial, however, where the truck knocked the boy and the bicycle to the ground and then immediately stopped, whether at a point 4 feet south of the driveway or at the driveway itself.

For the uncontradicted evidence shows that, after Lowery first saw young Keith ■approaching the roadway, young Keith was ■able to travel the entire length of the ramp '(23 feet) plus at least half the length of the roadway (9j/£ feet, i. e., one-half of the 19-foot width), or a total of at least 32 feet, before he was struck. It also shows that he was struck just as the truck stopped, so that if the truck had stopped a foot sooner — or if Keith himself had stopped sooner or had veered a foot north — , then no accident would have taken place. Yet during this interval no horn was sounded to alert the boy to the impending disaster.

The majority has accepted Lowery’s testimony at face value and has concluded that he could not possibly have stopped his truck any sooner. That may be true; but the majority has overlooked that the accident could also have been avoided by the slightest possible warning to Keith, that is by Lowery’s sounding the truck’s horn as soon .as he saw the boy.

Since the truck stopped instantly with the collision, an instant’s warning was all that was needed — for the boy to stop on the ramp, or to veer north and away from the approaching truck instead of south tozvard it — ■, this instant’s warning was all that was needed to avoid the accident. And the un-■contradicted testimony, and Lowery’s own admissions, show that the single tap of the horn that could have avoided the accident and the boy’s injuries, this single sounding ■of the horn was nevertheless not given.

The Louisiana jurisprudence holds that the duty of extraordinary care owed by a motorist towards a young child observed by him, includes not only the duty to bring his car under control to stop immediately, but also the duty to sound the horn and warn the child not to dash into the motorist’s path. See Albert v.. Munch and Guil-lory v. Allstate Insurance Co., cited above. The trial court correctly held the motorist liable for failure to perform this duty.

III.

Actually, the evidence in the record, it seems to me, is less favorable to the defendants than construed to be by the majority. I find no manifest error in the trial court’s factual appreciation that it presents a last clear chance case (although very close) in the classic pattern of Rott-man v. Beverly, 183 La. 947, 165 So. 153, and Jackson v. Cook, 189 La. 860, 181 So. 195. Under this factual appreciation, due to inattention, the motorist did not observe the young boy when he came into clear view on the ramp bicycling toward the roadway, although the motorist reasonably should have, as a result of which the latter did not apply his brakes sufficiently soon. He could thus reasonably have avoided the accident even without sounding his horn.

I do not wish to clutter this dissent with details, but the majority’s analysis of the facts is obviously faulty.

For instance, the observation is made that the motorist could hardly have stopped sooner, even if he had attempted to do so after the first boy entered the road. This is a truly astounding assertion under the evidence in this record, and not even the defendants claim this to be so.

As a matter of fact, the defendant motorist and his passenger testify positively that his motor vehicle came to a stop within 15-20 feet from the time the brakes were applied with perhaps an additional ten feet of reaction distance. Tr. 145. So far as the record shows, there was nothing to prevent the truck from having been stopped so quickly 50-100 feet further back, if the motorist had observed the young boy approaching the roadway at such earlier time.

The majority’s obvious error in this regard consists in taking as gospel the motorist’s rough estimate of his speed (“perhaps thirty-five miles per hour”, Tr. 144), and then applying to this estimate the stopping times of standard stopping charts.

These charts, however, are based on average reaction times of J4th 1° one second and on standard average braking efficiencies —although reaction times actually may vary from l/^th second to over two seconds, depending on the individual and the circumstances, and although the present truck may have had vastly greater or less braking efficiency than such hypothetical average. For this reason, because of the many variable factors, these standard stopping charts are of little use insofar as attempting to determine the speed, ability to stop, time to stop, etc., of a given vehicle after a given accident — the variables in the speed-stopping formula must be fixed for that given vehicle in that given accident. Baker, Practical Use of Speed Charts, 2 Defense Law Journal 1S6 (1957).

Again, if we apply the time sequence set out in the majority opinion, to the speed of the young bicyclists, we then have the incredible result that these young boys (7 and 11 years old) were bicycling at a speed of about forty miles per hour down a gravelled driveway and down the edge of a gravelled roadway, faster than the defendants’ pickup truck.

I cannot reiterate too strongly that an appellate court exceeds its power of appellate review when it reverses trial court factual determinations, primarily because of the appellate court’s imaginative reconstruction of the evidence, based upon deducing supposed exact facts from, and applying supposedly exact mathematical formulas to, the very rough estimates of the distances, speeds, and times by the witnesses.

The witnesses’ estimates of these are not recorded at the time of observation by means of a tape-measure or a stop-watch or a speedometer-reading. They are rough attempts, after the event, to estimate what was usually not actually well observed at the time.

The function of the court is not to use these rough estimates as if they were fixed quantities, which enable the court to arrive at the truth as though the truth can be-reached by impersonal mathematical formulas.

In the present case, for instance, the court’s basic function was to determine from the evidence whether the driver should reasonably have been able to stop (or otherwise avoid the accident) in time to have avoided striking the boy, after the driver reasonably came under the duty to observe the young boy approaching the roadway. In this regard, the trial court did not accept the driver’s testimony tending to prove he could not reasonably have stopped sooner (although he failed to explain why he could not have sounded his horn sooner),, because of certain inconsistencies between it and the testimony of his passenger and of the circumstance that in fact the young bicyclist, approaching at a lower speed than the pickup truck, was able to travel 33-37 feet in the clear view of the pickup truck before he was struck, reasonably indicating that the driver of the pickup truck did not see the boy as soon as he said he did.

This evaluation of credibility should not be reversed on appellate review, in the absence of manifest error. It certainly should not be reversed on the basis of obviously inapplicable mathematical formulas, especially when the party against whom they are applied has not been given the opportunity, by cross-examination or otherwise, to contest the applicability of this hearsay opinion evidence to the actual present facts.

I may say here that the defendant Lowery is a very responsible and a very fine member of the community. There is no doubt that he conscientiously attempted to tell the truth as he remembered it. But who of us, after striking and seriously injuring a young child, is going to admit, even unconsciously to one’s own self, that it is our own carelessness that caused the injury to the child? Our memory naturally selects or interprets incidents most favorably to ourselves, from among the confused and unnoted (at the time) events of the few seconds preceding and at the time of crisis. In evaluating credibility, it was not improper for the trial court to take this into consideration, in reconciling the opposing testimony of contradictory witnesses with the physical facts of an accident.

For the reasons above stated, I therefore respectfully dissent from the majority’s reversal of the trial court.

On Application for Rehearing.

En Banc. Rehearing denied.

TATE, J., dissents.  