399 So. 2d 1189 | La. Ct. App. | 1981
The accident giving rise to this litigation occurred at about 7:30 p. m. on April 5,1977 on Louisiana Highway 46 near its intersection with Ricouard Road in St. Bernard Parish. Juan Acosta sustained serious bodily injuries when his automobile was involved in a head-on collision in its own lane
The Department and Frey interposed the defense of contributory negligence to Acosta’s claims and filed third party and recon-ventional demands respectively against each other for full indemnification and, alternatively, contribution for any award against either of them in favor of Acosta.
Following trial on the merits the district judge awarded judgment in favor of Acosta and against the Department and Frey, individually, jointly and in solido, in the net amount of $18,010.00
The Department contends that the decision of the trial court is in error in that it (1) found the Department negligent, (2) failed to hold that the actions of Frey were the sole cause in fact of the accident, and (3) failed to hold Acosta contributorily negligent. Frey contends that the trial judge erred in concluding that his negligence was a cause in fact of the accident.
We are not favored with either oral or written reasons by the trial judge. However, inherent in his decision is the conclusion that each defendant was negligent and that their respective negligence substantially contributed to the accident. We agree.
Highway 46 at the scene of the accident is constructed of asphalt, 18' wide and bordered by shell and dirt shoulders. At the time of the accident the weather was clear and the roadway was dry. Each car was travelling at a reasonable rate of speed, not over 40 miles per hour, and had its lights on dim. The highway at this point has a slight curve but vision of approaching cars is not impaired.
Acosta testified that he had earlier stopped at a convenience store for cigarettes and was proceeding in an easterly direction when the first thing he noticed was the Frey vehicle bearing down on him. He only had time to brace himself for the impact. He did not observe the Frey vehicle leave the asphalt portion of the highway or its “fishtailing” movement upon its return to the asphalt. He insists that he was in his proper lane of travel at the time and there is no evidence in the record to the contrary.
Frey’s testimony is that he was proceeding in a westerly direction between 35 and 40 miles per hour. He turned his head to the right as he threw a package of cigarettes out of the window of his car. At this moment he thought that his right rear wheel left the pavement. He first applied his brakes and then accelerated his vehicle. As he re-entered the asphalt portion of the highway his car began to “fishtail”. Just as he got his vehicle straightened out, the impact occurred. He had not previously noticed the approach of Acosta. He also conceded that he was aware of the narrow pavement (18 feet) and the dangerous ruts.
Frey relies on the following language in Rue v. State, Dept. of Highways, 372 So.2d 1197, 1199 (La.1979):
“A motorist has a right to assume that a highway shoulder, the function of which is to accommodate motor vehicles intentionally or unintentionally driven thereon, is maintained in a reasonably safe condition. Conversely the Highway Department’s duty to maintain a safe shoulder encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself travelling on, or partially on, the shoulder.
“We conclude that plaintiff’s conduct if indeed it was substandard is no bar to her recovery of damages occasioned chiefly because the Highway Department negligently failed to maintain a safe highway shoulder. We therefore expressly overrule Hopkins v. Department of Highways, supra [167 So.2d 441 (La.App.)].”
and contends that his inadvertent departure from the paved portion of the highway was not legal cause in fact of the accident. We think his reliance on Rue is misplaced. In explaining Rue, the Supreme Court in Sinitiere v. Lavergne, 391 So.2d 821, 826 (La. 1980) stated:
“In Rue, supra, this court stated that a motorist’s duty to drive reasonably does not extend to the risk of injury from striking an unexpected and unexpectable hazard resulting from a negligently maintained highway shoulder. The reason for this statement was the jurisprudentially recognized rule that a motorist has a right to assume that highway shoulders are maintained in a reasonably safe manner in the absence of knowledge or reason to know of a defect. This language does not establish the highway shoulder as a ‘zone of recovery’ for every straying motorist. Rather, it states the simple principle that the law will not automatically bar a person from recovery or charge him with liability vis-a-vis third parties where the law does not charge that person with actual or constructive knowledge of an avoidable danger. Thus, if a person is chargeable with knowledge of a shoulder defect that could cause serious injury and, nevertheless, disregards his own safety and the safety of others, the law considers his actions in leaving the main travel portion of the roadway to be a breach of his duty to himself and to the others who can reasonably be expected to be injured by his actions. See Rodgers v. Department of Highways, 376 So.2d 1295 (La.App. 2nd Cir. 1979); Morrow v. Department of Highways, 377 So.2d 430 (La.App. 2nd Cir. 1979).”
The facts in Sinitiere are practically identical to those in the case now before us. In Sinitiere as here there was (1) a dangerous condition in the shoulder of the road
The Department offered expert testimony to the effect that the actions of Frey in applying his brakes and then accelerating his vehicle, coupled with his sudden turning to the left, caused him to lose control of his vehicle and that this would have occurred even without the existence of the “rut”. The trial judge rejected this conclusion and we find no error in his doing so.
The Department and Frey contend that Acosta was contributorily negligent in not observing the Frey vehicle until the collision was inevitable. They reason that had he observed that which he should have seen he could have slowed his vehicle down and avoided the accident as Frey “was just getting his car under control.” We find no merit in this argument. Even Frey testified that the entire series of events, his dropping off into the “rut”, his return to the pavement, and the “fishtailing” of his vehicle, occurred in a matter of seconds.
The question of quantum was not raised on appeal.
For the above reasons the judgment of the district court is affirmed.
AFFIRMED.
. Now the Department of Transportation and Development.
. Allstate’s separate suit for these sums was consolidated for trial with Acosta’s suit.
.Pain and suffering $ 7,750.00
Residual disability 12,500.00
Loss of wages 2,660.00
$22,910.00
Less uninsured motorist
payment to Acosta by Allstate 4,900.00
$18,010.00
. A drop of some 3V2 to 4 inches from the travel portion of the highway to the abutting shoulder.