165 So. 342 | La. Ct. App. | 1936
This is a suit for damages for personal injuries and for other damages arising out of an automobile accident which occurred on the Old Spanish Trail on the night of February 9, 1933, at a point about three miles east of the town of Sulphur in the parish of Calcasieu.
The demand made was for the sum of $35,000 against Gaston Theriot, owner of the truck which was involved in the accident, and Commercial Standard Insurance Company, which carried public liability insurance on the same. Judgment was prayed for against them both in solido.
The plaintiff, Edwin Goodwin, was employed by the Texas Iron Works Sales Corporation, a corporation domiciled and doing business in the city of Houston, Tex. The Travelers Insurance Company carried that corporation's workmen's compensation insurance, and, under the terms of its contract, paid to the plaintiff herein various sums aggregating $2,710.30.
Upon issue being joined between the plaintiff and the defendants, the Travelers Insurance Company intervened in the present suit, and, alleging that it held a subrogation from the plaintiff of all his rights of action against the defendants to recover any amount it may have been obliged to pay as the compensation insurer of his employer, asked for judgment against both defendants in the sum of $2,710.30, and prayed that it be decreed payment of that sum by preference and priority out of any judgment the plaintiff might recover against them.
After this intervention had been filed and before trial, the plaintiff and defendants compromised their suit; plaintiff accepting the sum of $1,500 in settlement of his claim. He then moved to dismiss his suit. This motion brought on further controversy on the part of the intervener, which it is unnecessary for us to consider, as by an agreement subsequently entered into the suit was re-established with the Travelers Insurance Company as plaintiff and Gaston Theriot and Commercial Standard Insurance Company as defendants.
The issue presented concerns the negligence of the driver of the defendant The-riot's truck in leaving it on the highway at night without lights or any other signal to give warning of its presence and also the contributory negligence of Edwin Goodwin, driver of the other car which ran into it.
The trial judge found that the truck driver was negligent and that Goodwin was not guilty of contributory negligence. *343 He accordingly rendered judgment in favor of the Travelers Insurance Company to the extent of its demand, and both defendants have appealed.
The facts disclose one of the present day frequent accidents of an automobile running into an unguarded truck obstructing part of the paved highway at night. There seems to be hardly no excuse for drivers to leave a truck occupying the main-traveled portion of the highway at night without at least observing the simple precaution the law imposes on them of having a front and tail light burning to warn the traveling public of the danger thereby created. The courts of this state have almost invariably held the driver who fails in this important duty guilty of gross and sometimes criminal negligence. There are a few extraordinary cases where it was shown that the driver, having done all that could be expected of a reasonable man in the way of correcting the trouble with his lights after something had gone wrong with them, was held faultless in this respect, but even then he was held charged with the duty of giving some other warning or signal of the presence of his truck on the road. In this case there was no excuse whatever for any lack of precaution, as the truck had been stopped several minutes, the lights were working, and besides there was an extra person with the driver who could have assisted in giving warning to approaching traffic. The two men testify that they flashed the lights as they saw automobiles approaching them from either direction, but the proof is positive that just a few seconds before Goodwin ran into the truck from the rear another car which had passed by it coming from the opposite direction did not see any lights on it at all. Aside from the question of lights, there seems to be no reason, moreover, why the truck could not have been removed from the paved portion of the highway and run on the shoulder by these two men. The only trouble they speak of having was with the motor. There was nothing wrong with the wheels, and therefore the case is not of the class in which the excuse for not removing the vehicle from the traveled portion of the road was because of a broken wheel.
We have but little hesitancy in agreeing with the trial judge on the question of the negligence of the truck driver, and must then find the solution of the controversy on the plea of contributory negligence charged against Goodwin, the driver of the car which ran into the truck.
The truck was parked on the paved highway, facing east, and Goodwin, driving a new Buick coupé was going in the same direction. The highway at that point, according to Goodwin, is straight. His car was equipped with four-wheel mechanical brakes, which he says had been recently tested and were in good condition. His headlights, as well as he remembers, were "in good shape," and under ordinary conditions when they were working well he says that he was able to see an object two or three hundred feet away. There was nothing unusual about the weather condition that night unless the cloudiness and cold which he refers to made it unusual. But cloudiness tends to make the night darker than usual, and we think it can safely be said that the experience of automobile drivers is that the darker it is the clearer becomes the vision from the headlights of an automobile at night. Plaintiff speaks of the shadow on the road from trees along the highway, but it is somewhat difficult to understand how the trees could have thrown a shadow on a dark night, and especially when there was no moonlight, as he himself says there was not.
Notwithstanding the atmospheric and other conditions existing on the night of the accident and the fact that ordinarily the headlights of his automobile, which were "in good shape," illuminated the road some two or three hundred feet ahead of him, it is Goodwin's testimony that he did not see the parked truck on the road until he was within forty-five or fifty feet from it.
Our State Highway Regulatory Act, Act No.
From the provisions of our state statute already referred to, and provisions of a similar import from statutes in other states, there has been formulated in the jurisprudence a rule to the effect that the driver of an automobile on the public highways at night must keep his car under such control as to be able to bring it to a complete stop within the distance which his headlights project in front of him. This court has held in certain cases that this was not an inflexible rule, and that its application depends on the facts and circumstances arising in each case. In certain cases cited by the district judge as authority in this case, because of the peculiar facts, the rule was relaxed and the driver of the automobile was held free of negligence. These are the cases of Futch v. Addison,
The judgment appealed from is erroneous and will have to be reversed.
It is, for the reasons stated, ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, reversed, set aside, and annulled, and it is now ordered, adjudged, and decreed that there be judgment against the Travelers Insurance Company, standing as party plaintiff herein and in favor of the defendants, Gaston Theriot and Commercial Standard Insurance Company, dismissing the suit of the said Travelers Insurance Company and rejecting its demand at its costs.
OTT, J., did not participate.