144 So. 176 | La. Ct. App. | 1932
Naturally plaintiff's automobile was a faster traveling vehicle than the truck, so he at once began to make preparations to pass it. In accordance with the provisions of section 14 of Act No.
From the evidence in the case, the truck was traveling at a rate of about fifteen or twenty miles per hour, while the automobile was traveling about thirty-five or forty miles per hour, so that, in order to pass the truck, provided it had remained on the right side of the pavement, it was not necessary to increase the speed of the automobile.
The plaintiff, thinking that his signal had been received and respected, proceeded to drive forward on the left side of the road in order to pass the loaded truck on the right side of the road. Defendant Rowlins, driver of the truck, was not at any time aware of the presence of an automobile, either in the rear or at his side. He presumed that if one were approaching from the rear its driver had seen his hand signal and would yield to him in his turn across the road. He testified that his truck was equipped with a rear-view mirror and that it did not disclose the presence of plaintiff's car in the rear. So, acting on the assumption that there was no danger from an overtaking car, he proceeded to make his left turn into the side road.
While Rowlins was in the act of turning and before his truck had cleared the pavement, plaintiff, in his automobile, came suddenly upon him and it was impossible to avert a collision. Plaintiff made a desperate effort to pass in front of the truck, the front wheels of which had just gotten off the pavement. In this effort he was unsuccessful. His right rear wheel struck the front portion of the truck and his automobile continued on in a northerly direction along the left, or west shoulder of the highway a distance of 50 feet and stopped in the ditch. In this distance it turned over several times. Plaintiff was thrown from the car and seriously injured, and the only wonder is that he was not instantly killed. The truck driven by the defendant Rowlins was only slightly injured. The front axle had to be straightened, and when that was done the truck was in as good condition as it was before. Immediately after the wreck the truck was driven off the pavement and parked on the right of the side road, evidently about the railroad right of way.
The plaintiff brought suit against the defendants *178 for damages in the sum of $15,915. At the trial in the lower court there was judgment for the plaintiff against the defendants in solido in the sum of $1,980. The defendants have appealed, and the plaintiff only asks that the judgment be affirmed.
It is the contention of the defendants that the driver of the truck was not aware of the presence of the plaintiff; that he held out his left hand as required by law and made his left turn. The driver of the truck testified that his truck was equipped with a rear-view mirror which gave him a perfect view of the rear, but that in addition he turned his head around and looked to the rear when he was 30 feet from the side road and saw no one. He says that he then held out his hand and started to make his turn, and that the first knowledge he had of the presence of the plaintiff was when the two vehicles collided.
From the evidence it is certain that at the moment before the truck began its left turn plaintiff was within a relatively short distance behind. Defendants' counsel, in their brief, estimate this distance at between 39.25 and 60 feet. Plaintiff says he was about and nearly even with the truck. In any event, the driver says he did not see him. If his mirror did not reveal him, it did not meet the requirements of the law (Act No.
"But plaintiff says that he looked, but did not see any train on the track. That is his fault or his misfortune. The law is not satisfied with a plaintiff looking and not seeing; he must look at such a time and in such a manner as he may see things that he should have seen if he had looked properly."
Counsel for defendants cite the case of Le Boeuf v. Benoit,
"The defendant before swerving across the road, should have looked behind to see if anybody was near, or else should have timely held out his left arm as a signal to anybody close behind him, indicating what he was about to do."
Certainly no one would say that holding out one's left hand without making sure that *179 it is seen is anything more than a mere idle gesture.
Defendants cite the case of Stevens v. Dean,
"If the defendant did not know of the approach of plaintiff's car, and, without knowing or being in possession of such facts as would charge him with knowledge, turned shortly across the road for the purpose of entering a side driveway or for any other lawful purpose, without giving a signal to a man whom he did not know and had no reason to believe was approaching, he would not be guilty of actionable negligence."
In the case under consideration the plaintiff sounded his horn, even though the driver of the truck never heard it. But at the time of the sounding of the horn the truck did go to the extreme right of the road, and plaintiff was justified in thinking that this was in response to his signal. As a matter of fact, the turning to the right was in preparation for the left turn to be made the next second. This identical situation arose in the case above cited, and on that point the court held:
"Having given notice by sounding his horn, and seeing defendant immediately turn to the right, plaintiff had a right to act upon the reasonable appearance of things, and to assume that defendant had heard the signal and yielded the right of way."
So it is clear that even the cited case would be authority for absolving the plaintiff herein from the charge of contributory negligence.
Another case relied upon by the defendants is that of Smith v. Clark,
"Where two automobiles were travelling in the same direction along a public highway, and the rear car attempted to pass the first one just as it was turning to the left out of the highway, and was injured, the driver of the front car was not guilty of negligence in turning to the left without signaling, if he did not know of the approach of the rear car."
We cannot accept that doctrine. We think the driver of the front car should know of the approach of the rear car if it is close enough to cause a collision when an unexpected left-hand turn is made. If this presence is not made known by some signal from the rear car itself, then it must be discovered in some way by the driver of the front car. The difference between our holding and that of the two cases last above cited, with reference to the front car, is the difference between the doctrine of "the last clear chance," and that of "the discovered peril." In the one, the driver is held responsible for what he could have seen and known and ought to have seen and known, while in the other he is held responsible only for what he actually sees and knows.
Next counsel cites the case of Paul v. Brady,
Defendants have cited several other cases which we have studied carefully, but we find nothing in them to absolve the driver of defendant's truck from negligence.
In the case of Lewis v. Gulf Refg. Co.,
"Under all the rules and practices, aside from any statutory regulations, the driver of a motor vehicle on a much travelled street, as this was, who desires to make a left turn across the street, must be particularly careful and on the alert for cars meeting or overtaking his. and must not make such turn until he is sure the way is open." *180
Of course, the above case involved a collision on city streets. But in this day of improved and paved roads, rules that are applicable to city traffic are becoming more and more applicable to traffic along the highways. Common experience warns us that a car may be expected to be immediately in the rear in the country almost as often as in the city.
In the case of Payne v. Prestridge,
"It must be admitted that the most dangerous movement on public streets or highways is the left-hand turn. Particularly is this true when the street on which this turn is attempted is a right of way street as Highland avenue is in the city of Shreveport. Any one driving south on Highland avenue has a right to presume that his passage will not be impeded by any one at intersections. One intending to turn off this street on the left, which necessitates crossing the street and interfering with or cutting two lines of through traffic, must use the utmost care and caution. He has no right of way across. He must bide his time. If necessary, he must give the proper warning to the traffic behind him and come to a full stop and await a favorable opportunity to turn off the street when he will not interfere with traffic in either direction. He must not be content with holding out his hand and suppose that all see it. He must look both ways and be sure he is safe before he undertakes to go ahead."
In the case of White v. Kennedy et al.,
Section 19(a) of Act No.
"The driver of any vehicle upon a highway before starting, stopping or turning from a direct line shall first see that such movement can be made in safety. * * *"
This is the latest expression of the Legislature on the subject. It is the law governing this case. In this section, the word "see" means ascertain, discover, or be aware. In the case of trucks it is specially required that they be equipped with rear-view mirrors that will afford a perfect view of everything within 200 feet to the rear. It cannot be said that the holding out of the left hand without seeing the condition of traffic in the rear will absolve the driver from negligence any more than it could be said that such a signal would absolve him from negligence even though he saw it was either unseen or unheeded by the traffic in front.
In this case the driver of the truck did not properly look to the rear, for if he had done so he would have seen the plaintiff. The case is as though he held out his hand without any thought as to whether a signal was being seen or heeded, and recklessly cut across the line of traffic. In so doing he was guilty of gross negligence.
For the reasons assigned the judgment appealed from is affirmed, with all costs to be paid by the defendants and appellants.