146 So. 708 | La. Ct. App. | 1933
Lead Opinion
This suit was brought as a result of a collision between two automobiles which took place on the Old Spanish Trail near the village of Iowa, fourteen miles east of Lake Charles, on the night of September 5, 1931.
Bourgeois, the defendant, had been to Lake Charles that afternoon and was returning to his home some fourteen miles east of the scene of the accident. The night was very dark and stormy. He had had some light trouble, all of the lights on his automobile going out at once. Instead of continuing on his journey, he turned around with the idea of going back to Iowa, where he intended to have his lights repaired. Thompson, the plaintiff, on his way from Franklin, La., to his home in Vinton, west of Lake Charles, was driving behind Bourgeois. Because of the rain, wind, and lightning, he had poor visibility at an appreciable distance ahead of him, and did not see defendant's car in front of him, without lights, in time to pass entirely clear of it on his left, and he ran into it, his right back fender striking the front left fender of the other car. His car was damaged considerably and he suffered personal injury according to the allegations of his petition. He sues for $1,000, of which amount, $424.85 is for the damage to his car and $575.15 is for the personal injuries he claims to have sustained.
Defendant admits the rainy and stormy condition of the night, and also that his car was, at the time of the collision, without lights. Nevertheless, he avers that plaintiff could easily have seen his car in the road, and had he had his own car under control, keeping a proper lookout ahead, and not have been driving at an excessive speed, could have stopped in time to avoid running into him. He claims that the defendant was negligent, and in a reconventional demand he seeks to obtain judgment against him for the damage to his car, amounting to the sum of $93.65, as he alleges.
After evidence had been taken, counsel for defendant filed an exception of no cause of action. In brief before this court, it is stated that the exception was overruled in the lower court. The minutes of the court, however, fail to show that any action whatever was taken, and we will therefore disregard it. Evidently, the judgment of the lower court being in favor of the plaintiff, the exception must not have been considered as having much merit.
The judgment allowed the plaintiff the amount claimed for the damage to his car only, the court finding that there was no testimony to support the claim for personal injuries. The defendant having appealed, plaintiff answered the appeal asking for an amendment of the judgment so as to include the demand for personal injuries as well.
In some respects the case might be considered from the same point of view as obtained in Futch v. Addison,
We agree with the district judge that there was no negligence on the part of the plaintiff and that he was as careful and prudent as the ordinary, average, and reasonable man would have been, driving under the conditions which prevailed that night.
The evidence, on the other hand, points to the lack of prudence of the defendant. Of course, he found himself in an emergency which offers a plausible excuse for his driving without lights on his automobile; but, as properly held by the trial judge, this cannot absolve him entirely from legal responsibility. It was his greater duty, under the circumstances, to take greater precaution for the safety of traffic on the road. The testimony shows that he was occupying, as he drove along, more of the paved surface of the road than he should have been under the existing conditions. Had he been to the extreme right of the road instead of only seven or eight inches from the stripe in the center of the pavement, as was shown, the chances are that the plaintiff would have cleared him entirely when he went to pass him on the left. His being on that part of the paved surface of the road, without any lights or other signal whatsoever, was the proximate cause of the accident, for which, as held by the district judge, he must answer for the damage that resulted to the plaintiff.
We agree also with the lower court that the personal injuries sustained by the plaintiff were of so slight a nature that they need not be considered.
The judgment appealed from is therefore affirmed.
Dissenting Opinion
As the Supreme Court refused to review the opinion in the case Hanno v. Motor Freight Lines, Inc.,
Plaintiff says:
"Q. When did you first see the car? A. A second before it hit him I was right on him and I made for the left hand side of the road and in doing so I hit his left fender with my right fender. * * *
"Q. You did not see Mr. Bourgeois at ten feet from you? A. No Sir. When I saw him I hit him I tried to pull to the center and in so doing my right fender hit his left fender bottom."
If it is so a party driving on the highway cannot see at all, he should stop and everybody else should do likewise, until it becomes so that they can see in the road ahead. I submit that the following opinions are in principle opposed to the opinion in the present case: Kelly v. Schmidt Zeigler,
In Blackburn v. R.R. Co.,
I think the weight of authority is such that our opinion should conform thereto. Under the preponderance of opinion Thompson was guilty of contributory negligence of such nature and kind that his negligence helped bring about the collision. I think the judgment appealed from should be reversed and his demand rejected.