88 So. 2d 254 | La. Ct. App. | 1956
Lead Opinion
This suit was filed by the plaintiff and his collision insurer for the purpose of recovering for property damage and personal injuries as a result of an automobile collision which occurred Nov. IS, 1952 when plaintiff ran into the rear end of a cane truck and trailer belonging to the defendant, Lottery Winters. Suit was filed against Winters, his insurer, and Winter’s alleged employer, Clemire Norris.
Plaintiff alleged that the loaded cane truck was parked approximately one mile east of Erath on a paved highway of standard width, 18 feet, with shoulders measuring approximately 10 feet in width on each side of the pavement, without any lights of any kind burning thereon and without any warning signals of any kind displayed at or near the said truck, and at the time of the collision neither the owner of the truck nor any one else was situated at or near the truck; that the construction of the loaded cane trailer, its height from the ground and the fact that it was covered with dust, dirt and mud caused it not to be visible nor to reflect any light whatsoever; that plaintiff’s automobile was approaching a car coming from the opposite direction and he switched his headlights from bright to dim, decreased his speed, but that the bright headlights of the approaching automobile rendered it extremely difficult to see to the front “for an instant” and caused plaintiff to be temporarily “blinded” for a moment and “inásmuch as defendant’s truck was situated only a few feet West of the point at which assured’s automobile and the opposing automobile traveling in the opposite direction met, assured had no notice or warning of the presence of said truck on said highway and was granted no opportunity whatsoever to observe its presence and the perilous situation created thereby in time to avoid said collision;” that at the time of the collision “the weather was clear, the road surface was dry, and there were no artificial lights situated at, on or near said highway.”
The defendant’s answer was a general denial, and a specific denial of any relationship of employer-employee as to the defendants, Winters and Norris. Defendant further plead contributory negligence.
The case was duly tried and for oral reasons assigned judgment was rendered in favor of the plaintiffs and against the defendant Winters and his insurer. Judgment was rendered in favor of the defendant, Norris, rejecting the demands of the plaintiff. The defendant Winters and his insurer have appealed and the plaintiff has answered the appeal asking that the amounts awarded be increased to the sum prayed for in plaintiff’s petition and as thus amended affirmed.
It is clear that the plaintiff must remove this case from the general rule and place it in the exception thereto by proof that the cane truck was so situated, constructed and of such a color as to be most difficult to see at night and that, as he alleged, it was parked without flares, reflectors or lights and unattended and that he was blinded by the bright lights of the
One of the first cases on the exception to the general rule upon which the plaintiff depends is Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377. Also see Cole v. Burgess, La.App., 31 So.2d 450; Warnick v. Louisiana Highway Commission, La.App., 4 So.-2d 607; Rea v. Dow Motor Co., La.App., 36 So.2d 750. There are many other cases in which plaintiffs have recovered under the exception to the general rule and which it is not necessary to cite.
On Nov. 15, 1952 the plaintiff was returning from Delcambre traveling west toward Erath at approximately 7:30 p. m. and he saw an approaching car and dimmed nis bright lights whereupon the driver of the approaching car put his lights on bright and he stated: “That is the last I can recall.”
Also offered by way of deposition is the testimony of John Suire, a cousin of plaintiff, who stated that he was following the latter's car just prior to the collision, and that he realized that plaintiff had run into something and he immediately applied his brakes and they, being somewhat defective, pulled him to the left, so he went around plaintiff’s car and the truck and continued without stopping. At the time he did not know who was driving the car in the collision and as he was on Army leave and had a short time to reach Orlando, Florida he did not stop. This witness stated that he had started to pass the plaintiff but saw the car approaching and as he could not establish the distance he did not take a chance and it was about this time that the plaintiff collided with the rear end of the truck. Apparently the plaintiff never did see the truck for this witness doesn’t testify that plaintiff slowed down prior to the collision.
It is shown that plaintiff was traveling at a reasonable speed of 30 to 35 miles per hour at the time of the collision. Plaintiff stated that he did not see anything, flares, nor the truck, and the last thing that he recalls as he dimmed his lights was that the approaching car, he thought apparently through error, switched its lights to bright. Plaintiff, when asked how far the car approaching was from his car when he dimmed his headlights stated, “It wasn’t very far. I guess he was — I would say five or six cars, three or four cars, maybe further or closer. I couldn’t tell you exactly.” Plaintiff also stated that a short way out of Delcambre he had come upon another wreck in which a car had run into the rear of a parked cane truck. This accident occurred at the height of the cane hauling season and it is shown that these loaded cane trucks were to be expected on the highway.
Plaintiff indirectly stated that he was suddenly blinded by the headlights of the approaching car. When asked by his attorney: “* * * Were you traveling alone when you stated that these headlights suddenly blinded you?”, he answered, “I was, sir.” The witness John Suire makes no reference nor was he asked with regard to the bright lights of the approaching car but it is clear that the lights did not blind him as he successfully went to the left of the plaintiff’s automobile and tire truck and passed both in time to avoid any collision with the approaching car. In fact, he does not mention any fear on his part that he might collide with the approaching car before being able to successfully pass the automobile and truck. From his testimony and that of the driver and guests in the approaching car to the effect that they did not see or observe Suire’s car, the approaching car must have been, a greater distance at the time of the collision than the driver Overton Boudreaux and his wife estimated. According to their testimony they were very close to the front part of the truck.
Steven Theriot, witness on behalf of plaintiff, stated that he was traveling on the highway from Delcambre to Erath on the night of plaintiff’s accident, and he passed the latter just out of Delcambre, and that he was traveling approximately 35 miles per hour. This witness also passed the wreck in which an automobile had fun into
Plaintiff offered the testimony of Mrs. Overton Boudreaux who was riding with her husband in the approaching car which plaintiff stated turned its lights on bright just prior to the collision. Both Mr. and Mrs. Boudreaux testified that they did not see John Suire’s car and yet they state that they were within fifteen or twenty feet of the front end of the truck at the time the plaintiff collided with the rear end. This estimate is evidently in error and impossible, else John Suire would never have been able to safely pass plaintiff’s automobile and the truck, and even if it had been a little further and he had been able to squeeze by, it would seem that he would certainly have mentioned the extreme closeness and narrow escape from a collision with Boudreaux’ approaching automobile. Furthermore, Boudreaux testified that there was a reflector in front of the truck about 15 feet, and John Suire stated that he did not see a reflector at the rear of the truck, which is correct as the rear reflector was found knocked down after the collision, and John Suire evidently did not turn back in front of the truck until after he had passed the reflector or he would have knocked it down.
The Boudreauxs further stated that they were almost on the Winter’s truck before they saw it, and they saw a car approaching which was the plaintiff’s, “at a moderate speed, 30 or 35 at the most,” but Mrs. Bou-dreaux did not recall whether the lights on plaintiff’s approaching car were on bright or dim. Mr. Boudreaux stated he thought that they were on dim and he stated, “No I didn’t see him dim; they were on dim,” but he did not remember whether his lights were on dim or bright. With regard to the parked truck, they stated that it was in the north lane of traffic on the pavement and they saw a reflector about 15 feet in front of the truck which they noticed at approximately 35 or 40 feet, and they saw one in the back that had been knocked down which was after the collision, and there were no lights burning on the truck or the trailer when he was approaching. Mr. Bou-dreaux testified that one car passed around the Plaintiff’s car and the truck at the time of the collision and that there was not a car within 50 yards at that time.
The State Trooper David testified that he came to the scene of the wreck shortly after it happened on Louisiana Highway 25 about one mile east of Erath and found the truck parked on the right lane of the highway facing west, and that the front lights were burning but none were burning on the rear. “The rail lights were demolished at the time of the accident. Whether he had one .on or not burning at the time of the accident, I can’t testify to that.” This Trooper noticed a reflector to the rear end of the truck that had been hit and “was close to the truck, all tore and demolished.” He also testified that he noticed a reflector in front of the truck and he. caused to be
“A. That was the headlights; the front lights of the truck.
“Q. The headlights were on? A. Yes, sir; as far as clearance lights, they didn’t have none.
“Q. They didn’t have any on the trailer? A. No, and the tail lights was totally demolished.
"Q. When you got there the headlights were burning, the tail light was demolished, and there were no clearance lights ? A. That’s right, sir.”
The Trooper testified positively that the front reflector had been placed approximately 100 feet from the truck. Along this line he testified:
“Q. Do you remember whether those were put even with the reflector that had been previously put there or closer to the truck or farther out?
A. That is one tiling I can’t verify, but I made them put it apparently one hundred (100) feet ahead of the truck, which was that front reflector'; it was in front of the truck, which was displayed apparently one hundred (100) feet ahead of the truck, and the one in the rear — at the time I had it displayed they had no reflector there because it had been busted, and I had it put apparently one hundred (100) feet on the rear.”
We are of the opinion that plaintiff’s testimony precludes his recovery as it is definitely shown by his witnesses that there was nothing extraordinary about the weather on the night of the accident, in fact, he alleged and it is shown by the testimony that' it was a dark, clear night. It is further ’Shown that three cars safely' passed this parked truck just a few minutes before the plaintiff collided with the rear end without ever seeing it. It is also shown that there was a reflector according to the State Trooper approximately 100 feet in front of this truck and a demolished reflector close to the rear end and which it is safe to assume was struck by the plaintiff. There was a reflector to the rear of the truck as testified to by the plaintiff’s witness, Theriot, and it was knocked down by. the car just in front of him when it turned out to pass the truck, and his uncle got out and stood the reflector up, showing that it was not damaged to any extent, at that time. The Boudreaux testimony insofar as the reflector being 15 feet in front of the truck is discredited by the State Trooper and, further, their testimony that no one came around the truck at the time of the collision or just subsequent to it is discredited by that of John Suire. It is our belief from all the testimony that the Boudreauxs were much farther from the parked truck at the time of the collision then they have testified.
Defendant offered the testimony of Reno Dugas who stated that he approached the parked Winter’s truck and saw a reflector in front of it as well as the parking lights burning on the truck, and after passing the truck he also saw the reflector in the back' but did not remember seeing any reflector on the side. It appears that this witness had given a statement to counsel for plaintiff that he did not remember whether there were lights burning on the truck and he admitted that he could have been mixed up in that he also saw the other cane truck which had been run into on the same evening.. This witness really thought that the lights were burning on defendant’s truck. He also gave a statement to counsel for defendant in which he stated that he def.-’ initely saw three reflectors but did not re-' member if his “parking lights were burning.” On the trial he said, “About them three reflectors, I don’t remember that middle one.”
Joseph Guidry, another witness on behalf of the defendant, stated that on that evening he was hauling cane and had gone to
The defendant Winters testified that he hauled cane from the defendant Norris’ derrick, and it is shown that other persons brought cane to this derrick and that on the night of the accident no one could testify whose cane Winters was hauling; that his arrangement was to haul the cane for 75‡ a ton to either the mill at Erath or Abbe-ville; that on the night in question a tire blew out and he had to leave his truck parked on the highway. He stated that he left his parking lights and his tail light burning as well as his clearance lights on the left hand side, and that immediately after the wreck he put one reflector in the center to the left of the truck, one in front and one in the back at a distance of about 30 or 40 steps. This witness stated that when he got back the lights were burning and the reflectors were still there. Of course, he is mistaken in this testimony as .the tail light was demolished and there were no clearance lights burning after the collision according to the State Trooper.
The only facts which were proven that could bring the plaintiff under the exception to the general rule were that this cane truck was so constructed and so covered with dirt and mud as to render it almost invisible, and the fact that the plaintiff testified that the approaching Boudreaux automobile turned its lights on bright just before the collision. It must be remembered, however, that the collision did not take place after the plaintiff passed the Boudreaux automobile but before the Boudreaux automobile ever got to the parked truck and it was a sufficient distance that had plaintiff seen the truck he could have gone around it and would not have collided with the approaching Boudreaux car, as John Suire, who was immediately following the plaintiff, swerved and safely passed the plaintiff’s automobile and the truck. Were we to accept only plaintiff’s testimony we believe he is guilty of contributory negligence. He and the Boudreaux car were only approximately 100 feet apart, when he dimmed his lights and Boudreaux switched to bright, and it is well to remember that plaintiff at that time, before any changing of lights had taken place, was traveling with his bright lights on and the Boudreaux car was traveling with the dimmers on. It is to be remembered that in between these two oncoming automobiles was this parked cane truck and trailer. It is to be remembered 'further that prior to the switching of the lights, plaintiff does not complain of being blinded by the oncoming lights of the Boudreaux vehicle. That being the case, we are at a loss to understand why plaintiff could not have seen the parked truck and trailer prior to this time. If he had been looking, and he says he had his lights on bright and the Boudreaux vehicle lights were on dim, there is no reason for his not being able to see the parked vehicle in his lane of travel because he was not blinded at that time. It was only after they were approximately 100 feet apart, with the parked truck in be
For the above and foregoing reasons, the judgment of the District Court is reversed and plaintiff’s suit dismissed at his cost.
Dissenting Opinion
(dissenting).
I must respectfully dissent from the' majority’s reversal of the District Court judgment.
Defendant’s driver left a large, dust-covered cane truck parked unattended on a heavily-travelled main highway. He failed to comply with his mandatory statutory duties to place reflectors 100 feet to the front and rear of the truck, and third reflector to the side thereof, and to remain to protect oncoming traffic. Almost all the testimony in the record concurs that due to the indistinguishable coloring of the unlighted truck and the inadequate warnings the truck was invisible in the night ahead to oncoming traffic from either direction until said traffic was within a few feet of the truck.
In addition, the plaintiff herein was blinded by oncoming traffic; which testimony of plaintiff is supported by the testimony of the oncoming motorist and his wife, and by the testimony of the driver of a car which passed plaintiff immediately before the accident.
The decision of the majority herein is clearly contrary to Dodge v. Bituminous Casualty Corp., 214 La. 1031, 39 So.2d 720, and I cannot reconcile it with the uniform jurisprudence of this Court interpreting the doctrine first enunciated by Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377: See, e. g., Buford v. Combs, La.App., SO So.2d 469, wherein this Court through the organ of the present decision thoroughly analyzes and summarizes the Gaiennie doctrine; see also Washington Fire & Marine Insurance Co. v. Travelers Indemnity Co., La.App., 86 So.2d 743, rendered at our last decision day; Gautreaux v. Oregon, La.App., 84 So.2d 632; and cases cited in these opinions.
The majority overlooks that the proximate cause of this accident is not any failure of the plaintiff to observe the truck, indistinguishable in the dark ahead; it is the failure of defendant’s driver to minimize the extremely hazardous situation created by parking this truck on the travelled portion of the highway, by complying with his statutory duties as set forth at LSA-R.S. 32:241 and 32:441.
The latter statutory provision requires that trucks such as the present must be equipped with “three portable flares, reflectors, or other similar devices * * * plainly visible for a distance of five hundred feet.”
This latter statute further mandatorily requires as to trucks which stop on the highway during the hours of darkness that:
“The operator * * * shall immediately * * * place one such warning device at the side of his vehi*261 cle just inside the black line marking the center of paved highways and near the center of dirt or gravelled highways, and place one such device approximately one hundred feet to the front and another one hundred feet to the rear of his vehicle, and shall maintain these devices in this position during the time the vehicle remains parked.” (Italics mine.)
This truck was left parked on the trav-elled portion of the highway in violation of LSA-R.S. 32:241, subd. A, rather than on the wide level shoulders which the evidence shows were available for the purpose, because one of the four rear tires was flat and presumably the driver considered it “disabled”, so as to be within the exception created by LSA-R.S. 32:241, subd. B, which however provides:
“B. The provisions of this rule [i. e., requiring removal of the stopped truck from the travelled portion of the highway] shall not apply to the driver of any vehicle which is disabled while on the main traveled portion of a highway so it is impossible to avoid stopping and temporarily leaving the vehicle in that position. However, the driver shall remove the vehicle as soon as possible, and until it is removed it is his responsibility to protect traffic.” (Italics mine.)
Instead of protecting traffic, defendant’s driver set out two flares fifteen feet to the front and rear of this truck, left no lights whatsoever on the truck, and departed with a passing friend to pick up another tire. The truck was left unattended and without warning on this main highway for at .least thirty minutes, during which time the present accident occurred. This was negligence of the grossest kind.
Plaintiff was approaching at a speed of 30-35 mph, was blinded by the oncoming car of Overton Boudreaux, and crashed into the rear of the inadequately lighted and indistinguishable truck left with such gross negligence on this main highway.
The large size of this truck aggravates defendant’s negligence by increasing the hazard created. We seem to hold that because of this size the oncoming motorist should have seen the truck. Certainly, in daylight it should have been easy to see this truck; certainly an appellate court may, sitting in the peace and calm of a library surrounded by books, think of good reasons why this truck should have been seen.
The fact remains, to which all witnesses testify, that the truck could not be readily observed on the highway ahead to ordinarily prudent motorists, because of the dust-coloring, lack of warning, and perhaps the high trailer-bed (under which the beams of traffic approaching from the rear might shine). Appellate courts are not supposed to supply a standard of care of imaginary ideal motorists; the standard the law gives us. to apply is that of a reasonably prudent motorist under the facts and circumstances surrounding the accident in question.
If the facts found by the majority differ than those set forth in this dissenting opinion, the record should not be so construed in view of the following evidence, accepted by the District Court and virtually uncon-tradicted in the record:
a. Truck left without lights:
Passing motorists Stevan Theriot, John J. Suire, Mr. and Mrs. Overton Boudreaux, as well as plaintiff, testified to this' fact; Mrs. Boudreaux testified that she saw some one turn the front lights on after the accident. State Trooper Ignace David, who arrived after the accident, found the front lights only on; the rear lights being demolished. '
Against this overwhelming proof, the only contrary evidence is defendant’s -driver Winters, and his friend, Joseph Guidry, who picked him up to go get a tire. These colored truckdrivers testified that the front, rear, side and top lights of this truck were lit, before and after the accident, and that it was visible from one-half mile away; although it is uncontradicted that there were no clearance (side and top) lights, and that the rear lights could not have been lit after the accident since they were demolished ! On the face of the record, the Dis
The only other witness introduced by defendant was Mr. Reno Dugas, a wrecker-man, who frankly admitted that when he testified on direct examination that a truck’s lights were on, he referred to just one of the two trucks stopped on the highway that night, and that “I could have had them trucks mixed, but know one of them had the park lights on”' (Tr-134) and “No, to tell the truth, it could have been the second one” (Tr-136), that is the truck other than the one involved in the present accident.
b.Truck left with flares just 15 feet in front and rear;
Oncoming motorists Mr. and Mrs. Over-ton Boudreaux testify positively to this. Stevan Theriot, who was proceeding from same direction as plaintiff and passed a little prior to the accident, testified that the rear reflector was knocked down by the car in front of him, so he replaced it. As to the distance this rear reflector was behind the truck, he replied it was “a good piece”, but on amplification in the following question, indicates it was between the first and the second car ahead stopped immediately 'behind the parked truck — that is, not much more than a car length behind the parked truck, or about 15 feet behind same.
His entire testimony concerning this is as follows, Tr-104:
“Q. How far was the reflector from the back end of the truck? — A. I didn’t measure it; it was a good piece. I don’t know, I didn’t measure it.
“Q. Was it even with the first car or the second car or any car? — A. They had space between the cars, but it was between me and the second car— in front of the second car. When he started he passed in between and knocked it down.”
This positive testimony is contradicted nowhere in the record, except by the discredited testimony of defendant’s driver and his friend, not believed by the District Court. As noted, Mr. Dugas admitted that the front reflector he saw may have been situated by the other truck not involved in the accident.
State Trooper David who came 30-min-utes after the accident found the demolished rear reflector right by the rear end of the truck; he found the front reflector 100 feet in front of the truck, but of course it was probably so placed after the accident, just as the truck lights were turned on after-wards, in view of the positive uncontradict-ed testimony of the front-approaching Boudreaux’s previously referred to.
c. Truck dust-covered and difficult to discern in night:
All motorists who testified agreed that the truck in question was almost impossible to discern in the roadway ahead until the motorist was within a few feet thereof. The State Trooper also testified that the truck was dust or dirt-covered.
This is uncontradicted in the record, except perhaps by the discredited testimony of defendant’s driver and his friend, disbelieved by the District Court.
d. Plaintiff Suire blinded by lights of oncoming Boudreaux car:
Plaintiff himself testified, Tr-68:
“Q. Before you met this automobile. Now, Mr. Suire, what was the effect on your vision when this other automobile suddenly placed his headlights on*263 bright? — A. They suddenly blinded me I suppose. I couldn’t see.
“Q. Were you blinded for a long interval of time before you don’t remember anything ? [i. e., before he hit the truck, following which plaintiff has an amnesia] — A. I guess it was a few seconds I suppose.”
See also his testimony at Tr-66, and Tr-75.
Plaintiff was corroborated by the testimony of motorist John 'Suire, testifying by written interrogatory in Michigan who replied under oath to Interrogatories 33, 34, and 35 that the Boudreaux’ lights were “fairly bright”, “strong”, and made it “difficult to see.” (Tr-48.)
With the utmost respect for my conscientious and sincere brethren, I can only feel that they have reached a result contrary to that reached by the District Court in response to the eloquent and able oral argument of counsel for appellants that the doctrine of the Gaiennie and Dodge cases should be restricted or limited.
With the utmost respect for the views of my brethren, I feel that it is not our province as an inferior appellate court to do other than to follow the jurisprudence as settled by our Supreme Court. And I may add that I am thoroughly in accord with the Gaiennie and Dodge jurisprudence as the practical and enlightened response to the higher safe-driving speeds, the greater volume of traffic, and the necessities of modern traffic at night, in view of which a greater burden is placed on those who dangerously obstruct the highways with actual or presumed knowledge that even reasonably prudent motorists under present-day circumstances may be unable to avoid colliding with such obstructions; just as reasonably prudent motorists are entitled to expect that no indistinguishable and unlighted obstruction will suddenly rear up in their path on a much-travelled main highway.
For these reasons, I must respectfully dissent.
Rehearing denied;
. The argument is advanced that because after the accident, Trooper David found the front reflector 100 feet in front of the truck, rather than 15 feet as testified to by the Boudreaux’ as its location before the accident, that therefore the testimony of the latter is weakened or to be disbelieved. The “courts will not impute perjury to apparently credible witnesses,” Cockrell v. Penrod Drilling Co., 214 Da. 951, 39 So.2d 429, at page 432, and particularly not on the basis of illogical deductions drawn from an appellate record and contrary to the trial court’s accept-anee of the testimony of said witnesses as credible.
