Lead Opinion
This is а case involving an intersectional collision which occurred in the City of Lake Charles, Louisiana. Judgment was rendered on February 7, 1962 with written reasons assigned in favor of the plaintiffs, Mrs. Katherine Askew and her husband, Ted Askew, and the defendants, George C. Hamilton and his insurer, Allstate Insurance Company, have appealed to this court.
In the afternoon of July 18, 1960 plaintiff, Mrs. Katherine Askew, was driving a Chevrolet pick-up truck in a westerly direction on Twelfth Street in the City of Lake Charles, Louisiana, and defendant, George C. Hamilton, was driving a 1957 Chevrolet automobile in a northerly direction on Enterprise Boulevard. Enterprise Boulevard is a multi-lane thоroughfare in the City of Lake Charles, with the north and south traffic lanes divided by a neutral ground. Twelfth Street runs east and west and intersects Enterprise Boulevard apрroximately 129 feet north of where the Missouri-Pacific Railroad track crosses Enterprise Boulevard. This railroad crossing is on an embankment, so that vehicles traveling north on Enterprise Boulevard are required to climb a gradual elevated portion of the street, cross the railroad track, and then drivе down this gradual embankment before reaching the intersection of Twelfth Street. Notwithstanding the railroad embankment, the evidence discloses that the driver оf a vehicle traveling north on Enterprise Boulevard can see the tops of vehicles at the intersection of Twelfth Street, and vehicles at the intеrsection on Twelfth Street can likewise see the tops of automobiles traveling north on Enterprise Boulevard while still south of the railroad crossing. Therе is a stop sign where Twelfth Street enters Enterprise Boulevard.
Although traveling on the inferior street, the trial court found that plaintiff had preempted the intersеction and thus had acquired the right of way when she was struck by the Hamilton automobile. We do not feel that the law of this State when applied to the facts оf this case supports such a conclusion.
The driver with the right of way is ordinarily entitled to proceed toward and into an intersection upon the assumptiоn that inferior traffic will respect his superior right to proceed, unless he could reasonably realize in time to avoid an accident that the inferior traffic will continue into the intersection. Steele, for Use and Benefit of Steele v. State Farm Mutual Ins. Co.,
The law is also settled to the effect that when confronted with a stop sign, in addition to being legally obligated to bring his vehicle to a complete stop, a motorist is held to the duty of appraising traffic in the intersecting street and of making certain that the way is clear for him to make a safe passage across the intersection. Brown v. Checker Cab Co., supra; Hardware Dealers Mutual Fire Ins. Co. v. Meyers, La.App.,
The record discloses that plaintiff, prior to entering the intersection, stopped her pick-up trück at the stop sign and pro
In answer to the contention that plaintiff pre-empted the intersection, we stated in a recent decision, Fontenot v. Liberty Mutual Ins. Cо., La.App. 3 Cir.,
“The jurisprudence of this State has been established to the effect that the prior entry of an intersection, without a reasonable exрectation and opportunity of traversing it in safety and without obstructing the normal movement of traffic therein, does not constitute a pre-emption of the intersection. Also, before a motorist can successfully rely on pre-emption, he must show that he entered the intersection at a proper speed and sufficiently in advance of the car on the intersecting street to permit him to proceed on his way without requiring an emergency stop by the other vehicle.”
See also : Hernandez v. State Farm Mutual Automobile Ins. Co., La.App. 2 Cir.,
We are of the opinion that the plaintiff did not pre-empt the intersection within the meaning of this established jurisprudence. Although the collision occurred when the plaintiff’s vehicle had reached or almost reachеd the neutral ground on Enterprise Boulevard, she obviously entered the intersection without having the opportunity of clearing the same without obstruction of the path of another vehicle under normal and reasonable circumstances and conditions.
Counsel for plaintiff contends that notwithstanding that plaintiff may not have pre-empted the intersection, defendant had the last clear chance of avoiding the accident.
This court, in a recent deсision, Lavigne v. Southern Farm Bureau Casualty Ins. Co., La.App.,
“For the successful invocation of the doctrine of last clear chance, the existence or presence of three essential elements must be established: First, that the other person was in a position of peril of which he was unaware or from which he was unable to extricate himself; second, that the person against whom such doctrine is charged actually discovered or was in a position where he should have and could have discovered such other person’s peril; and, third, that at the time the person charged with responsibility could have, with the exercise of reasonable care, avoided the accident.” * * *
See also: Russo v. Texas & Pacific R. Co.,
In the instant case, when the plaintiff entered the intersection in front of the approaching automobile of the defendant she obviously was in a position of peril of which she was unaware or from which she was unable to extricate herself. However, the evidence fails to establish that the defendant actually discovered or was in a position where he could оr should have discovered the plaintiff’s peril in time to have
Therefore, for the reasons herein assigned, the judgment of the trial court is reversed, and accordingly, judgment is rendered in favor of defendant, rejecting the demands of the plaintiffs-appellees at their costs.
Reversed and rendered.
Rehearing
On Application for Rehearing
En Banc. Rehearing denied.