27,160 La.App. 2 Cir. 8/23/95, Summarell v. Ross
| Decision Date | 23 August 1995 |
| Citation | 660 So.2d 112 |
| Parties | 27,160 La.App. 2 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Hudson, Potts & Bernstein by Brady D. King, II, Monroe, for appellants.
McIntosh, Fox & Lancaster by John M. Lancaster, Oak Grove, for appellees.
Before SEXTON, NORRIS and WILLIAMS, JJ.
[245 La.App. 2 Cir. 1] SEXTON, Judge
Rufus Ross and Shelter Insurance Company, defendants in a suit arising out of a collision between an automobile and a hay trailer towed by a tractor, contend on appeal that the trial court erroneously found Ross 100% at fault and improperly awarded excessive general and special damages. The judgment is amended and affirmed.
After visiting her mother in Bastrop, Elizabeth Summarell, age sixteen, returned home by driving east on a straight, dry, rural two-lane road about 5:00 p.m. She estimated her speed about 50 to 55 mph. She observed the tractor and trailer ahead and moving east at a slow speed. Slowing as she approached the tractor and determining there was no oncoming traffic, Miss Summarell turned on her blinker and moved into the left west bound lane. She did not sound her horn. While she was passing, the tractor turned left across the west bound lane without giving a signal. Miss Summarell hit the brakes and tried to get back into the right east bound lane. She skidded and the left driver's side bumper hit the rear of the hay trailer.
Rufus Ross was driving east at approximately 5 to 10 mph on his tractor which pulled a homemade eighteen foot hay trailer. Neither the tractor nor the trailer had signals, lights or a slow-moving vehicle sign. Ross observed the Summarell vehicle about three-fourths of one-quarter mile behind him. In sixth gear at the time, he pulled the clutch back to slow down and turn into his driveway. Stating that both hands were occupied, Ross did not give any type of hand signal before turning left. He believed he had ample time to complete the turn. He did not hear Miss Summarell's brakes or [245 La.App. 2 Cir. 2] skidding but heard the impact. Ross estimated that two feet of the trailer were still in the right east bound lane after the collision.
Trooper Charles D. Harris, Jr., the investigating officer, found the Summarell vehicle disabled in the road and the tractor pulled up into Ross's yard. The Summarell car had major damage mainly in the front left side, and the hay trailer had moderate damage on the rear of the trailer. Neither driver reported injuries. The collision occurred in the east bound lane right at Ross's private drive because the skid marks ended there close to the immobilized car. Based upon her statement and his skid marks examination which was not inconsistent, the trooper estimated Miss Summarell's speed to be 50 mph at the time the skid began. He acknowledged he had no evidence to dispute either Miss Summarell's statement that she was in the passing lane when Ross turned left across that lane or Ross's statement that he had already begun turning when Miss Summarell tried to pass. Harris gave no opinion concerning fault in the accident. He ticketed Ross for an improper turn because his tractor and trailer did not have signals or the slow moving vehicle sign. Harris listed no violations for Miss Summarell.
In reasons for judgment, the trial court concluded that the evidence showed that Miss Summarell had already moved into the passing lane when Ross commenced his left turn. Although the point of collision was in the east bound lane, the trial court noted that was due to Ms. Summarell's attempts to avoid the accident. The trial court found that Ross was 100 percent at fault in causing the accident.
The trial court awarded plaintiffs $3,190.15 for property damage based [245 La.App. 2 Cir. 3] upon an estimate to repair obtained by the plaintiff rather than the $3671.58 estimate of the defendant insurer obtained a year after the accident. It also awarded plaintiff $3500.00 for the loss of use of the car and inconvenience. The court found that Elizabeth Summarell suffered soft tissue injury. A general damage award of $1,500.00 was rendered along with $125 for doctor's bills. The court awarded $1,580.00 in storage charges which included a $75.00 towing fee.
A court of appeal may not set aside a trial court's factual finding in the absence of "manifest error" or unless it is "clearly wrong." In order to reverse a factfinder's determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding and, also, must conclude that the record establishes that the factual finding is clearly wrong. The reviewing court must determine, not whether the trial court was right or wrong, but whether the conclusion was reasonable. Even if the appellate court feels its own evaluation and inferences are more reasonable that the trial court's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed where conflict exists in testimony unless the testimony is so contradicted or internally inconsistent that manifest error or clear wrongness is present. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993).
A. No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in R.S. 32:101, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety.
B. Whenever a person intends to make a right or left turn which will take his vehicle from the highway it is then traveling, he shall give a signal of such intention in the manner described hereafter and such signal shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.
C. No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.
Louisiana jurisprudence confirms the statutory law by holding that both the left-turning motorist and the overtaking, passing motorist must exercise a high degree of care because they are engaged in dangerous maneuvers. Neal v. Highlands Insurance Co., 610 So.2d 177 (La.App. 3 Cir.1992), writ denied, 612 So.2d 100 (La.1993).
Walton v. Bellard, 581 So.2d 307, 310 (La.App. 1st Cir.1991), writ denied, 585 So.2d 567 (La.1991), summarized the law on left turning motorists:
The law sets forth the duties imposed on a left turning driver as well as a passing driver. The duties imposed upon the plaintiff, a left turning motorist, are found in La.R.S. 32:104. The plaintiff was required to give a signal of her intent to make a left turn at least 100 feet before reaching the private driveway. In addition to giving the proper signal, the plaintiff is required to [245 La.App. 2 Cir. 5] make a proper observation that the turn can be made without endangering a passing vehicle. Bamburg v. Nelson, 313 So.2d 872, 875 (La.App.2d Cir.), writ denied, 318 So.2d 57 (La.1975). The plaintiff's failure to meet these duties does not automatically absolve the defendant from liability.
The law equally imposes a duty upon the passing motorist. This duty is specifically set forth in La.R.S. 32:73 and 75. A passing driver is not automatically required to sound his horn when executing a passing maneuver. The statute simply mandates that the passing driver sound his horn when the circumstances dictate that it is reasonably necessary for safe execution of a passing maneuver. In other words, the facts of a case dictate whether the passing driver had a duty to sound his horn. Doucet v. Ryder Truck Rental, Inc., 415 So.2d 618, 620 (La.App. 3rd Cir.1982).
Generally, a passing driver does not have a duty to give an audible signal when the preceding vehicle is occupying its own lane of traffic, though traveling slowly. Soileau v. Hanover Insurance Company 232 So.2d 128, 130 (La.App. 3rd Cir.1970). The purpose of sounding the horn is to warn the overtaken driver to give the passing driver necessary clearance in which to complete his pass. The purpose of this duty is not to warn the overtaken driver not to turn left. Barber v. Sumrall, 206 So.2d 560, 561-562 (La.App. 1st Cir.1968).
In Hall v. Jackson, 215 So.2d 367, 369 (La.App.2d Cir.1968), the court held that the driver who was following a slow moving vehicle was entitled to pass where the preceding driver had not signaled his intent to make a left turn. It is unreasonable to require the following driver to anticipate that the preceding driver will make a left turn into an obscure private driveway based on the mere fact that the preceding vehicle was traveling slowly. Barber v. Sumrall, 206 So.2d at 562.
Acknowledging that Ross was not free from fault, defendants suggest in brief that the parties were equally at fault. Findings of fault are factual determinations which are not disturbed even if other finders of fact may have allocated fault differently. Nowell v. State Farm Mutual Auto Insurance Co., 576 So.2d 77 (La.App.2d Cir.1991), writ denied, 580 So.2d 923 (La.1991). Defendants assert that Summarell's testimony was confused while [245 La.App. 2 Cir. 6] Ross's was very clear. Ross stated that Miss Summarell was far enough back that he was certain he could complete the left turn safely. Since the skid marks were 69 feet, defendants argue that Miss Summarell was not paying attention or she would have seen Ross turn before she began passing.
The trial court's conclusions that Miss Summarell was in the passing...
To continue reading
Request your trial