#### Sybil ACKEL, individually and for the use and benefit of the minor, Elizabeth Ebey, Plaintiff and Appellant, v. MILLERS MUTUAL FIRE INSURANCE COMPANY OF TEXAS, et al., Defendants and Appellees.

No. 3515.

Court of Appeal of Louisiana, Third Circuit.

Aug. 20, 1971.

Rehearing Denied Sept. 23, 1971.

Ford & Nugent by Howard N. Nugent, Jr., Alexandria, for plaintiff-appellant.

*504T. C. McLure, Jr., Alexandria, for defendants-appellees.

Before CULPEPPER, MILLER and DOMENGEAUX, JJ.

CULPEPPER, Judge.

This is a suit for damages for personal injuries to a six-year old child who ran across a street into the side of the defendant motorist’s moving automobile. The district judge found the defendant motorist free of negligence. Plaintiff appealed.

The accident occurred on Main Street in the city of Pineville. This is a heavily traveled paved thoroughfare, about 40 feet in width, which runs generally north and south. It accommodates two-lane, two-way traffic with parking on the east side.

At the scene of the accident, a Dairy Queen Drive-in is located on the west side of the street, approximately in the center of a city block, where pedestrians would not normally cross the street. It was about 4:30 p. m. on December 1, 1969, and traffic was heavy. The injured child and an older companion were on the sidewalk on the east side of the street and intended to cross to the Dairy Queen. They proceeded at a “fast walk” past the cars parked on the east side of the street and into the north bound lane of traffic. Mr. Carroll Dunn, who was driving in a northerly direction, applied his brakes in order to avoid striking the girls and then signaled them to go on across. The defendant motorist, Joseph L. Bordelon, was approaching the girls in a southerly direction and says that he did not see them until they were only a few feet from the side of his car. The oldest child apparently stopped, but the younger ran into the side of the Bordelon vehicle.

The evidence amply supports the following findings of fact by the trial judge:

> “It is this Court’s impression that Mr. Folk, a disinterested witness, gave the clearest and most logical interpretation of the accident. He was on the south side of his building on the outside when the accident occurred and he was looking at the street. There were cars parked on the east side and there was north bound traffic. He saw the girls on the east side of the street opposite his south driveway. They came across the street at a fast walk. The north bound car stopped. (Dunn). They were in between Dunn’s car and a vehicle in front of him. When the green car (driven by Dunn) hit its brakes and swerved the girls turned to see it, turned back and ran into the side of Bordelon’s car. He estimated Bordelon’s speed at 20 to 25 miles per hour. The impact was about the middle of the vehicle and Bordelon stopped approximately one car length past his driveway after the incident. The children were never in front of Bor-delon’s vehicle.

> “Other testimony conflicts as to the manner in which the accident occurred. Folk’s testimony is clear, believable and is accepted by this Court as the manner in which the accident occurred.

> “This Court fails to find any negligence on the part of Bordelon. There is no evidence to the effect that he saw the children prior to the time they darted into the side of his automobile and the degree of care is that of a normal, prudent driver. It does not reach the point of extreme care until such time as chidren are seen or should have been seen.”

Plaintiff’s principal argument is that under Folk’s testimony, a gap of three to five car-lengths occurred when Dunn hit his brakes while the vehicles in front of him kept on going north. Plaintiff says that when this gap was created, Bordelon should have seen the girls in the north bound lane in time to avoid the accident. We cannot agree. Assuming that the north bound traffic was proceeding at 25 miles per hour, a gap of three to five car-lengths would be completed in one or two seconds. *505It would be unreasonable to require the defendant Bordelon to see the children and take the necessary action to avoid the accident, in so short a time. Actually, it is very doubtful that he could have avoided this accident even if he had seen the girls immediately on hearing Dunn apply his brakes.

The applicable law is well established. A motorist who sees or should see children in or near the street, must exercise a high degree of care in view of the propensity of young children to run across the road, heedless of their own safety, Ates v. State Farm Mutual Automobile Insurance Company, et al., La.App., 191 So.2d 332 (3rd Cir. 1966). However, a motorist is not an insurer of the safety of small children and he will not be held liable where a child suddenly darts or runs into his vehicle from a concealed position in such a manner that he could not see the child in time to avoid the accident, Duraso v. Barbo, La.App., 215 So.2d 908 (1st Cir. 1968).

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff appellant.

Affirmed.

ON APPLICATION FOR REHEARING

Rehearing denied.

MILLER, Judge.

I would grant the application for rehearing. There is no credible evidence to support the finding that the injured six year old pedestrian darted from a screened position.1

Defendant’s insured Joseph L. Bordelon did testify that the oncoming traffic was bumper to bumper. But his testimony was not accepted by the trial court. In written reasons the trial court stated that “Mr. Bordelon was not an impressive witness being contentious and over defensive.” This finding is more than supported.

Ryland W. Folk’s testimony was accepted by the trial court and we have agreed that it is the most logical interpretation of the accident. But Folk’s testimony on two critical points does not support the trial court’s finding nor the decision of this court.

First, Mr. Folk made it absolutely clear that there was no northbound traffic within “three, four, five car lengths” in front of the Dunn car when the Dunn car made its emergency stop. Tr. 150, 151, 159. After this line of testimony was so well established, plaintiff’s counsel objected to further questions by defense counsel on this point. The trial court sustained the objection and at Tr. 159 specifically ruled that “He (Folk) said that there was no car in front of the green (Dunn) car.” (Parenthetical additions by the writer.)

Second, Mr. Folk testified unequivocally that when Dunn made his emergency stop, the children stopped and looked at the Dunn car and then crossed the remainder of the street. When they stopped they were half way across the northbound lane. Tr. 152. On re-direct examination by defense counsel at Tr. 163, Folk was asked:

> “Q. * * * Mr. Folk, from the time these girls left the curb until they *506ran into the side of Mr. Bordelon’s car, was their progress continuous across the street or not ?

> * * * * * *

> “A. No sir, there wasn’t.

> “Q. Did you say that they paused in front of—

> “A. The green (Dunn) car when he stopped, that’s right.

> “Q. And for what length of time?

> *“A.*Probably a minute.”

There was no southbound traffic ahead of Mr. Bordelon (Bordelon’s deposition exhibit P-4, pages 9, 20, 33.)

As I read the record, Mr. Folk testified that the westbound children had stopped in front of the northbound Dunn vehicle some ten feet east of the center of the street. At that time, the southbound Borde-lon vehicle had a clear view of the scene for a distance of at least three to five car lengths. There is no credible evidence in this record to support the finding that Dunn was closely following another northbound vehicle which screened Mr. Borde-lon’s view of the events occurring in the northbound lane.

Mr. Bordelon testified that he never saw the Dunn vehicle prior to the time the child ran into the side of his car. He admitted that he heard the squeal of brakes. But at that time, Bordelon testified that it was too late for him to do anything to avoid the accident. At Tr. 38, on cross examination, Mr. Bordelon testified:

> “Q. Where had you been looking prior to the time that you heard the brakes squeal?

> “A. Looking straight ahead.

> "Q. When you say straight ahead, you are on Main Street in the southbound lane looking toward the river, is that right?

> “A. Yeh, looking straight ahead in the street.

> “Q. And your testimony is that you did not see the front end of Mr. Dunn’s car go down as he put on his brakes, is that right ?

> “A. No, I didn’t see that particular thing, no.

> *“Q.*And that is just over here in the lane next to you isn’t it ?

> “A. Yeh, but I wasn’t looking in that direction, I wasn’t looking that way when he first did that. That is what drew my attention is when — I didn’t look right then and there, I just look just a moment later. I would have had to turn my head to see directly over there.”

In my opinion, this 67 year old driver failed to see what he should have seen and was therefore negligent. This negligence was a legal cause of the accident.

A reasonably alert southbound driver with a clear road ahead of him in his lane and a clear road in the oncoming lane for at least three, four or five car lengths, is bound to see what is occurring in the northbound lane when a northbound motorist has made an emergency stop to allow two westbound children to cross in front of his car. Mr. Bordelon should have seen two children stopped half way across the northbound lane some ten feet from the center of the road. He should have noted that the northbound motorist had made an emergency stop to avoid striking two children who were attempting to cross to the recently opened Dairy Queen ice milk stand. Mr. Bordelon admitted that he had looked to his right in the direction of the Dairy Queen shortly before the accident and that he would have stopped had he seen the children to his left.

Failing to find credible-evidence to support the trial court’s finding that the children darted from a screened position into the side of Mr. Bordelon’s car, I would grant the application for rehearing.

1

. Additionally, I find that we erroneously stated plaintiff appellant’s argument as a contention that “under Folk’s testimony, a gap of three to five car-lengths occurred when Dunn hit his brakes while the vehicles in front of him kept on going north.”

Instead, plaintiff appellant argued that after the emergency stop was made by Dunn, the children were stopped halfway across the northbound lane some ten feet east of the center of Main Street, and at that time there was no northbound traffic within three to five car lengths ahead of Dunn. Therefore Bordelon’s view of the children was not obscured. Dunn timely saw the children come from an obscured position and avoided an accident for which he would not have been negligent. But his emergency reaction should have drawn Bordelon’s attention to the children who were stopped and clearly visible to Bordelon.