No. 2908. | La. Ct. App. | Jun 30, 1947
The plaintiff's suit was dismissed on an exception of no right or cause of action and he has taken this appeal.
The case involves an automobile collision which is alleged to have occurred in the City of Lake Charles on March 6, 1946 at about 12:30 a.m. In his petition plaintiff avers that he was driving his automobile south on Kirkman Street in the City of Lake Charles on that morning; that he crossed Pine Street going in the direction of Mill Street at a very slow rate of speed. In fact he alleges that he was shifting gear from second to high when he crashed suddenly into an automobile belonging to the defendant which was parked about eight feet from the curb, almost in the center of Kirkman Street, with no lights burning and no one in the car. He avers further that "the collision above alleged was unavoidable by him for the reason that he had just left Pine Street when another automobile entered Kirkman Street from Mill Street with its lights burning brightly, which lights shined in petitioner's face temporarily blinding him from seeing the Burgess car."
The exception of no right or cause of action was based on the proposition which invariably is presented in cases of this kind as to whether the driver of an automobile at night should have his car under such control as to be able to stop it within the distance projected by his headlights in front of him. It is urged, as is usually done in such cases, that that constitutes contributory negligence and in this case it is further urged that as such negligence appears from the allegations of plaintiff's petition, he has not disclosed a right or a cause of action.
[1] The rule just stated no doubt prevails in this State according to numerous decisions on the subject but beginning with the very first case in which it was announced, the courts have invariably stated that no hard and fast rule can be laid down on the subject and that the surrounding circumstances and facts of each particular case must be considered in order to determine the question of contributory negligence. In other words, in this State, a person who does not have his car under such control is not guilty of contributory negligence as a matter of law but can only be found negligent upon a trial of the case on the merits. That is especially so in cases where he alleges, as did the plaintiff in this case, that on approaching an object parked on the highway without lights or other warning devices, before running into it, he had become blinded by the glaring headlights of an automobile approaching from the opposite direction or by some atmospheric conditions which appeared unexpectedly and temporarily impeded his view of the roadway ahead.
The Supreme Court, years ago, in the case of Woodley
Collins v. Schusters' Wholesale Produce Co.,
Lately the case of Gaiennie v. Co-operative Produce Co., Inc.,
The trial judge is said to have sustained the exception on the authority of a number of cases which are cited in brief of counsel for the defendant but in all of them we find that the decision was on the merits after trial had been had.
[2] In view of the allegations made in this case we conclude that plaintiff also is entitled to a trial on the merits and therefore the judgment appealed from will have to be reversed and the case remanded to the lower court.
It is now ordered that the judgment appealed from be and the same is hereby reversed and set aside; the exception of no cause or right of action is overruled and the case is now remanded to the district court for trial on the merits.