*1 ma- and showed that such evidence Herman J. M. Clem plead- DAIGLE and Hazel terial issues raised to the ent, wife, Appellants, his ings. also averred The affidavit City of near accident occurred principal Wichita, Kansas, and that LOUISIANA & POWER LIGHT COM PANY, Appellee, Tulsa, Breeding office located at Oklahoma. No. 16541. United Appeals States case Court of An eаrlier motion to transfer Fifth Circuit. prior to the was made District of Kansas July 19, judgment. entry summary 1957.
to the judge motion and The trial denied Rehearing Sept. 3, Denied ruling court his sustained appeal. mo- on the first But second showing stronger tion made a much grounds first than did the transfer clearly appears
motion. We think it con-
from the second motion that parties
venience of witnesses justice been
the interests served transfer action to for the
United States District Court Wichita,
District of for trial at Kansas opinion
Kansas. We are of the judge discretion
the trial abused denying like motion. Should interposed
motion be on remand of the granted.
case, it should be submit had been the case After they deliberated to the ted they time, returned to were for some inquired courtroom numerically. The fore they stood how ten divided man answered gave Following that, the court to two. The supplementary instructions. certain objected Company in to the Railroad and has as quiry made Breeding signed did error. it as assign inquiry has not object opinion are of the error. We ed it as supple inquiry, with the taken that the instructions,
mentary was calculated
wrongfully coerce the inquiry not have been made. See should States, Cir.,
Berger United
438, 439, 440 cited. and cases there against Breeding judgment on its The
complaint is affirmed. Company against Railroad is re- remanded, and the cause
versed grant the Railroad Com- instructions
pany new trial. *2 Judge.
HUTCHESON, Chief
appeal by
parents
This is an
of a
old сhild from a
en-
tered for
on the verdict
defendant
negligent
its favor in
death
a suit for the
of the child.
Rail-
Atlantic Coast Line
Mims, Cir.,
road Co. v.
complicated
The
facts were not
general they presented
jury question
whether the
was
defendant’s truck driver
negligent
and whether such
proximate
was the
cause of the child’s
following
death.
The
facts were
dispute:
standing
The child
either in
on the
street or in close
street;
sidewalk with her back to the
group
she
chil-
was one of a
of five or six
dren,
playing in the
of whom
some
intersection;
street at
of 100 feet
from a distance
saw her
intersection
half a block from the
street;
her back to
noted that she had
running
speed of not
at a
the truck was
miles an hour at the
less than twelve
death re-
The child’s
time
collision
the truck.
sulted from a
conflicting
evidence as to
There
child ran in front of the
whether the
or,
just
before
struck
just
testified,
passed
turned
as he
into the side
his truck.
her and ran
according
moment,
to his
at this
It was
testimony,
applied
he first
the brakes
to the left. He stated that
and veered
lessening up
had beеn
his
point
merely
let
the truck
power.
driver did not
The
coast without
Jr., George
Gisevius,
M.
Frederick
any time blown his
he had at
claim
Discon, Frank
Fen-
Leppert,
B.
John G.
sought
manner
other
horn or
Shearman,
erty,
New Or-
Robert F.
the children.
attention
attract
appellants.
leans, La., for
unnecessary
ana
think it
We
Carter,
Hughes, Andrew P.
Robert G.
precisely
lyze
more
bеcause as
Orleans,
Monroe,
La.,
New
Raburn
J.
ample evidence on
it there
we view
La.,
Orleans,
Lemann, New
&
Monroe
go
proper
under a
counsel,
appellee.
only
substan
the court.
wheth
HUTCHESON,
specifications of error relate to
Judge,
Chief
tial
Before
correctly
adequately
CAMERON,
er
Circuit
TUTTLE
and
Judges.
jury.
issues to
submitted
done,1
generаlly
is not an
child
have
insurer
As the courts
ren,2 they
established,
trial
made clear
the Louisiana courts have
as the
high
apply
charged,
to children
Thus
care.
Guillory
*3
Horecky,
21,
in situations
in
168
185
in or in
to streets
La.
dispute
481, 483,
year
the
existed at
So.
in
an
such as without
eleven
tragedy,
a motorist
while
of
and
old
ran
side
time
child
into the
of a trailer
Required
by sounding
in General
1.
Osire
“Sec. 1492.
the horn or
the reasons
given
public
right
way
warning.
is not a
in the
streets
“A child
for
A
of
such
trespasser.
right
is
sacred
His
there
rule in favor of
re-
the motorist does not
neighbor
duty
exercising
of
owner
the
as his adult
or the
him of
of
lieve
the
due
especially thought-
bound to an-
Motorists are
automobile.
care and he must be
presence
ticipаte
of children
the
is
ful in such a case where a small child
highway
public
under a
the
and are
involved.
diligence
“However,
to avoid
to exercise reasonable
the
occurrence of a
mere
injuring them.
a
a
collision between motor vehicle and
justified
doing,
“In
he
in as-
so
is not
minor on the street does not of itself
suming
young
negligence.
a
will
child
manifest
establish
driver’s
or-
prudence
an
and
ex-
der
to sustain a
perienced man,
govern
against
driver,
jus-
own
and must
his
a
such
some evidence
degree
ordinary
tifying
with some reasonable
conduct
men of
reason
fair-
and
respect
fact;
saying
standard of
of that
ness in
the driver could have
being
by
care to be exercised
motorists
avoided the
in the
accident
exercise
ordinarily prudent man
that of
care must
reasonable
be shown.
recog-
situation,
He must
the same circumstances.
“In
a
the absence of such
un-
in, or
nize the fact
that children
about
til an automobile driver has notice of
cross,
may
presence
to
the street
be unmindful of
or likelihood of children near
dаnger.
travel,
degree
line of
the rule as to the
required
vigilance
“The
and care
care to bo exercised as
to children
operator
vary
respect
respect
adults,
of an
in
automobile
as it is with
is the same
to
persons
ages
antomobilist,
seeing
put
to
different
different
and an
not
or
on
physical conditions, and lie must increаse
notice of children on or near the road-
danger
in
negligent
failing
his exertions
avoid
way,
order
in
is
to decrease
may see,
speed, particularly
whom
children
he
where he could not
ordinary
see,
exercise of
on
care should
have avoided
accident
he de-
highway, and,
younger
speed.
or near
his
creased
the child
less able he is to look
day may
degree
“The
time
some
himself,
greater
out
for
the care
anticipate
presence
affect
reasonably
may
which
operating
exacted of
those
example,
For
of children
the street.
dangerous
agencies
in the
held that a motorist
it has been
was not
injuring
killing
streets
to avoid
him.
anticipate
bound to
aof
approaches
place
When the motorist
a
dark,
child in
street
5
old
where there are
or near
children
unaccompanied by any person of suitable
age.” Blashfield, Cyclopedia of Automo-
highway
keep
he must
a constant
look-
out.
Practice,
2A, Chapt.
bile Law
Yol.
“The
a motor
Negligence
38,
of Mоtorists.
Children —
prior
vehicle
to the collision did not see
Boatright, La.App.,
In Rainwater v.
a child
2.
whom
strikes down does not
212, 213,
general
So.2d
rule
stated
negligence,
him of
relieve
as follows:
exercise
due
should
have seen the child in time to have avoid-
“But
the motorist
is not
the insurer
injury, particularly
ed
where
children
or rid-
crossing
child is
between intersections
street.
If
the motorist has
precautions
the view unobstructed.
used
all
to avoid
“A motorist cannot assume that a child
sudden
accident
act of the
him,
young
emergency
rendering
front of
too
to under-
creates an
danger
way;
impossible
stand his
will
out
his
for the motorist
to avoid hit-
ting
child,
and the mere fact that he sounds his horn
the accident is said to be
apрroaching
years,
unavoidable,
when
liability.
of tender
is no
street,
Cyclopedia
about
to cross the
cannot
re-
Blashfield’s
of Automobile
responsibility
(Permanent
lieve him of
Ed.) p.
Law and Practice
approaching
ap-
532,
Rodriguez
such
Abadie,
itas
cannot
§
La.
preciate
object sought
App.,
or understand the