50 So. 2d 817 | La. | 1950
This- is a suit for personal injuries and property damage sustained in an automobile collision. The judge of the district court, after hearing the evidence, rejected plaintiff’s demand and the Court of Appeal affirmed the judgment. See 40 So.2d 673. We granted certiorari.
The accident occurred on Highway 78, a. winding black topped road paralleling the right descending bank of Bayou Lafourche, at about 7 o’clock on the morning of May 26, 1947. Plaintiff was driving his Chevrolet car in the direction of Larose and the main defendant, one Dupuy, operating a large lumber truck with trailer attached, was heading south in the opposite direction or towards Golden Meadow. The black topped portion of the highway is 18 feet in width and has gravelled shoulders on each side. The collision took place at the entrance (facing south) of a long, gradual curve to the right which is preceded by a straight road for a distance of approximately 500 feet. Plaintiff was travelling northward in this curve and, just as he neared the. end of it and was passing Dupuy’s truck and trailer (which was being driven in the opposite direction), the left side of his car, from the front door to the rear, received a glancing or scraping blow from the left side (from middle to rear end) of the large trailer. After the collision, plaintiff’s car continued forward on his right or proper side of the road and came to rest thereon about 300 feet from the point of contact. Dupuy’s truck and trailer travelled about 95 feet before it came to a stop. As a result of the impact, plaintiff received serious and permanent injuries to his left arm, which had been resting on the left front door of his car, and his automobile was badly damaged.
The hypothesis of plaintiff’s action, in which Dupuy’s liability insurance carrier, Lumberman’s Mutual Casualty Company, has been joined as co-defendant, is that the truck-trailer was passing or just had overtaken and passed another truck driven by one Cheramie (referred to in the evidence as the Esso truck) at a time when the, vehicles were at the entrance of the curve in which the accident occurred; that the large truck and trailer (approximately 30 feet long and 8 feet wide) was unable to fully regain its side of the road, the left side and end of the trailer protruding over the middle of the highway to such an extent that he did not have sufficient room to pass. It is charged that Dupuy’s act in overtaking and passing the Esso truck at the entrance of the curve was gross negligence and in direct contravention of paragraphs (c) and (d) of Section 3, Rule 7, Title 2 of the Highway Regulatory Act No. 286 of 1938, LSA-RS 32:233, subds. C, D, which provides:
“(d) The driver of a vehicle shall not overtake and pass another vehicle proceeding in the same -direction, approaching the crest of a hill or substantial grade, or upon a curve in the highway or elsewhere, where the view of the driver doing the overtaking or passing is obstructed within a distance of five hundred (500) .feet.”
Dupuy’s version of the mishap is wholly dissimilar to that of plaintiff. He denies that he was engaged in passing the Esse truck and claims that the accident resulted solely from plaintiff’s negligence; that plaintiff heedlessly used the wrong (Dupuy’s) traffic lane in rounding the curve and continued his approach until, despite emergency efforts, the collision was unavoidable.
It is readily seen, therefore, that the respective contentions of the participants in the collision are diametrically opposed, so much so, that they are irreconcilable. Thus, we are confronted at the outset with a question of fact — the correct determination of which will dispose of the controversy.
The main witness in support of plaintiff’s theory is Cheramie, the driver of the Esso truck. He testified, in substance, that he is very familiar with the roadway, having driven his truck over it for many years; that, on the day in question, he was driving towards Golden Meadow at
Plaintiff’s testimony is that he was driving his car at a speed of about 40 miles per hour on the right side of the road; that, as he was rounding the curve where the accident took place, he noticed the Esso truck coming in the opposite direction; that, when he first saw it, it was “probably a couple of blocks” away; that he did not see Dupuy’s truck at that time but that, as he continued on and had reached a point very close to the place of impact, he was confronted by Dupuy’s truck on his side of the road; that, at that time, the truck was ten or fifteen feet in front of him and that there was nothing he could do to avoid the glancing blow sustained by his car.
Dupuy, in his testimony, says that he was completely on his right side of the road at the time the accident happened and that plaintiff, in rounding the curve, came into the wrong lane of travel thus making a collision inevitable, despite the fact that he swerved his truck ever to the right in an attempt to avoid contact. He states
Dupuy’s testimony is, for the most part, corroborated by the statements of Mr. and Mrs. Brinsum, who were following the two trucks in their Plymouth car, which had overtaken and passed the Esso truck just prior to the collision. Mrs. Brinsum says that, as her husband was overtaking and passing the Esso truck, she noticed plaintiff’s car coming around the curve; that she called her husband’s attention to it and that he immediately pulled in in front of the Esso truck and behind Dupuy’s truck-trailer. She does not know whether plaintiff’s car was in its right lane or not and she did not see the accident, stating that, after their car returned to its right side of the road between the Esso truck and Dupuy’s truck-trailer, "That’s when I decided to crochet, because my husband was going slow then. He slowed down after he passed the Esso truck”.
Like his wife, Mr. Brinsum says that he did not see Dupuy’s truck-trailer pass the Esso truck. He asserts that, when he was passing the Esso truck (the Dupuy truck being ahead on the right hand side of the road), his wife (“She’s kind of a back seat driver, anyway”) directed his attention to plaintiff’s car coming around the curve; that plaintiff’s car seemed to be on the wrong side of the road; that he must have been too much to his left as, when the collision occurred, “It seemed to me he kind of brushed it” because the truck was on its right side. I
The district judge and the Court of Appeal accepted the defense testimony as the true account of the accident. This, we think, was error as the evidence satisfies us that the testimony of Cheramie portrays an accurate picture of the facts and circumstances which brought about the collision. In the first place, when we consider the location of the respective witnesses just prior to and at the time of the impact, it is manifest that Cheramie was in a much better position, by reason of the height of his truck from the ground and the slow speed at which he was travelling on the right hand side of the road, to view plaintiff and the Dupuy truck-trailer as the vehicles were negotiating the curve. In- ^ deed, it strikes us that the Brinsum car (despite Brinsum’s statement that it was not travelling more than 50 miles an hour prior to. the passing operation) was probably running at a high rate of speed (which is indicated by the testimony of Mrs. Brinsum which we have above quoted) ; that the participants therein were busily engaged in maneuvering that car in between the rear of the .truck-trailer and the Esso truck and that, in the emergency confronting them, they did not (nor were they in a position to) see all that they ventured to relate in their evidence.
In addition, it is patent to us that the version given by Cheramie in his testimony is' more reasonable, being in consonance with the physical facts of the case. It is shown that the curve in which the accident occurred is to the right for vehicles proceeding to the south. Therefore, if plaintiff was travelling on the left or wrong side of the road going north, as Dupuy contends, it is unlikely that the left side of his car would have collided with the left middle and rear portion - of the trailer. Under such circumstances, the contact would have been with the left front portion of the Dupuy truck-trailer, even if plaintiff would have suddenly swerved to. his right side of the road.
Conversely, Cheramie’s testimony that Dupuy, in overtaking the Esso truck, failed or was unable to 'bring the entire vehicle back to its proper side and that a part of the trailer protruded over into plaintiff’s portion of the roadway, coincides perfectly with the admitted facts that the contact between the vehicles consisted of a scraping of the left side of plaintiff’s car by the left rear portion and end of the trailer.
Being of the opinion that the testimony of Cheramie is the accurate account of the accident, Dupuy is responsible under the above quoted provisions of thfe Highway Regulatory Act, unless plaintiff was guilty of contributory negligence having causal connection with the mishap. The district judge found that plaintiff was at fault because he testified that he did not see the Dupuy truck until he was about 10 or 15 feet from it. This, the judge concluded, evidenced a failure to exercise a proper lookout because, if plaintiff had looked, he would have seen the truck when he was a much greater distance away.
Remaining for disposal is the quantum of damages to which plaintiff is entitled. Since this question has not been argued or briefed in this court, we have concluded to remand the case to the Court of Appeal for the fixing of the award as was done in the recent case of Salter v. Zoder, 216 La. 769, 44 So.2d 862.
The judgments of the lower court and the Court of Appeal are annulled and set aside and it is now ordered that there be judgment in favor of plaintiff and against defendants for such sum as the Court of Appeal may find the facts of the case warrant and the matter is remanded to that court for this purpose. All costs are to be paid by defendants.
. It may seem that, because we now find that the principal point for adjudication is a question of fact, the writ of review should not have been granted in view of the provisions of Section 2 of Act No. 191 of 1898, L.S.A.-R.S. 13:4450, which contemplates that a writ should be denied in any case where the correctness of the judgment of the Court of Appeal depends upon whether that court has rightly decided an issue of fact. But it is settled that, after a writ has been granted, we have the right, under Article 7, Section 11 of the Constitution, to decide all questions of fact as well as law with the “same power and authority in the case” as if it had been brought here by appeal. Pipes v. Gallman, 174 La. 257, 140 So. 40 and Robichaux v. Realty Operators, Inc., 195 La. 70, 196 So. 23. What prompted the granting of the writ of review in this ease was the conclusion of both the district judge and the Court of Appeal that, under the testimony given by Cheramie, Dupuy did not violate the provisions of paragraphs (c) and (d) of Title 2, Section 3, Rule 7 of the Highway Regulatory Act, No. 286 of 1938, because he began his passing operation while on the 500 foot straightaway, notwithstanding the fact that there was a distance of much less than 500 feet between the curve, where the accident took place, and the point where the passing operation was undertaken.