Eubanks v. Brasseal

• Citation: 310 So.2d 550
• Decision Date: 31 March 1975
• Docket Number: No. 55479,55479
• Parties: Thomas Perry EUBANKS, Jr. v. Isaac BRASSEAL et al.
• Court: Supreme Court of Louisiana

Page 550

310 So.2d 550

Thomas Perry EUBANKS, Jr. v. Isaac BRASSEAL et al.

No. 55479.

Supreme Court of Louisiana.

March 31, 1975.

Paul H. Due, Due & Dodson, Baton Rouge, for plaintiff-applicant.

R. L. Davis, Jr., Theus, Grisham, Davis & Leigh, Monroe, for defendants-respondents.

MARCUS, Justice.

Thomas Perry Eubanks, Jr. filed suit for damages for personal injuries sustained when a one-ton truck he was driving was struck from the rear by a large truck-trailer unit loaded with gasoline and driven by Isaac Brasseal. Made defendants were Brasseal, his employer, and the latter's insurer, who denied Brasseal was negligent and, alternatively, alleged that plaintiff was contributorily negligent. The trial court found that the accident was caused solely by the negligence of plaintiff and rendered judgment dismissing plaintiff's suit at his cost. The court of appeal found plaintiff negligent and, pursuant to defendants' special plea of contributory negligence, affirmed the judgment of the trial court. Eubanks v. Brasseal, 300 So.2d 500 (La.App.2d Cir. 1974). Upon application of plaintiff, we granted a writ of certiorari to review the judgment of the court of appeal. 302 So.2d 614 (La.1974).

The facts underlying this controversy are essentially undisputed. The collision occurred at about 3:30 p.m. on U.S. Highway 165, a two-lane roadway, in Caldwell Parish. It was raining, and the surface of the highway was slick. The specific location of the accident was on the Riverton overpass which is a distance of about 20 miles south of Monroe. The terrain in the vicinity of the overpass was flat, and the overpass was constructed on large mounds of dirt on each side of the railroad track, with a bridge being built to connect the space between the mounds.

Plaintiff had passed Brasseal at a red light in Monroe, and both vehicles proceeded south on Highway 165, with plaintiff in the lead vehicle. Plaintiff did not recall seeing Brasseal after having passed him in Monroe. Plaintiff had been traveling at approximately 50--55 miles per hour as he approached the overpass. As he reached the crest of the overpass, he observed a police vehicle with blue flashing lights coming from the opposite direction. His first reaction was that there had been an accident. Accordingly, he immediately began slowing his truck. He continued southward and, as he reached the vehicle with the flashing lights, he discovered it was a sheriff's department car leading a funeral procession. By this time, he had slowed down to about 15 miles per hour. Upon reaching half-way down the overpass, he looked into his rear view mirror and saw defendant truck bearing down on him. The police vehicle was about three car lengths past his truck. He shifted from fourth to third gear in an attempt to accelerate and avoid the accident. However, realizing that there was no time to avoid the collision, he grabbed his young son, who was riding next to him. At this point, plaintiff's vehicle was struck in the rear by the tank truck. The impact thrust plaintiff's head against the rear window. As a result of the collision, plaintiff now complains of persistent headaches and disabling and painful back injuries.

According to defendant, he had been traveling behind plaintiff at a similar speed (50--55 miles per hour). He estimated that he was about a city block or 100 yards behind plaintiff when he observed plaintiff pass the police vehicle near the top of the overpass and, seeing the flashing blue lights, let off the accelerator to slow his vehicle. As he passed the crest of the overpass at a speed of approximately 35 miles per hour, he saw plaintiff's vehicle in his lane of traffic about 75 yards away, or half-way down the incline, and realized that he was about to overtake it. When he applied the brakes of the truck, the trailer, which was filled to its capacity of 8,250 gallons of gasoline and weighed about 50,000 pounds (total weight of loaded tank truck was about 72,000 pounds), began to jackknife. He released the brake and swung the trailer back under control. He tried to apply the brakes twice more, but the trailer continued to jackknife, forcing him to release the brakes each time. This procedure slowed the speed of the tank truck to approximately 10--15 miles per hour when the collision occurred at the foot of the overpass. It is clear from the evidence taken as a whole that Brasseal traveled a distance of about 700 feet between the point at which he observed plaintiff's vehicle when he (Brasseal) was on top of the overpass and the point of impact.

The court of appeal affirmed the trial court's dismissal of plaintiff's suit without consideration of defendant Brasseal's negligence. Rather, the court of appeal found plaintiff's negligence consisted primarily of his violation of R.S. 32:64, which prohibits the operation of a motor vehicle '. . . at such a slow speed as to impede the normal and reasonable movement of traffic . . .,' except when a special hazard exists that requires a slow speed. This breach of care was said to constitute negligence, and, upon finding that this negligence contributed to the accident, the court of appeal denied recovery on the ground that, even if the defendant Brasseal was found negligent, the plaintiff's contributory negligence would bar his recovery. We disagree with the conclusions of the court of appeal.

Plaintiff urges that R.S. 32:125(A) prescribes the appropriate procedure to be followed by a motorist upon the approach of an emergency vehicle. The statute provides in pertinent part:

Upon the immediate approach of an authorized amergency vehicle making use of audible and visual signals, or Of a police vehicle properly and lawfully making use of an audible signal only, the driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel to, and as close as possible to, the right hand edge of curb of the highway clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.

(Emphasis added.) The defendants urge that, in view of uncontradicted testimony that the approaching police vehicle was not sounding its siren, there was no audible signal, and the statute is not applicable.

While we agree the statute is not technically applicable to require that the plaintiff stop his vehicle next to the curb, R.S. 32:125(A) is certainly indicative of the legislative intent that, upon the approach of similar emergency vehicles, motorists should at least reduce the speed of their vehicle and proceed with due caution. This is corroborated by the exception made to R.S. 32:64, the 'slow speed' statute, that allows a motorist to slow his vehicle when a 'special hazard' exists. Accordingly, in our view, the approach of the police car in such a manner indicated to plaintiff that a potentially dangerous situation existed, in response to which he properly reduced his speed. The slowing of his vehicle was not excessive; rather, the rate of speed was entirely reasonable, considering the condition of the road on a rainy day and the unavailability of a road shoulder on the overpass by which to escape the potential hazard. Moreover, we do not find, contrary to the court of appeal, that plaintiff maintained his slow rate of speed for an inordinately long period of time, as the accident occurred almost immediately after he slowed his vehicle. Thus, we are unable to say that plaintiff's actions under these circumstances constituted negligence.

Having determined that plaintiff's actions do not bar his recovery, we must determine whether the defendant was at fault and caused the accident. At the outset, R.S. 32:81 furnishes the standard of care required of motorists following other vehicles. The statute provides in pertinent part:

The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.

In interpreting this statute, the courts of appeal have determined that a following motorist who strikes a preceding motorist from the rear is presumed to have breached the standard of conduct prescribed in R.S. 32:81 and, hence, is presumed negligent. Thus, the burden rests upon the following motorist to exonerate himself. ¹ This interpretation rests in the settled theory that, where a traffic law is designed to protect life and property, it is a safety measure, the violation of which is negligence per se and is actionable if it was a legal cause of the collision. ²

Bearing this burden to exculpate himself, defendant Brasseal must establish that he kept his vehicle under control, closely observed the forward vehicle and followed at a safe distance under the circumstances. Following motorists have escaped liability for rear end collisions by establishing that the forward vehicle, encountered in the dark, was stalled and unlighted ³ or that the unpredictable driving of the preceding motorists created a sudden emergency that the following motorists could not reasonably have anticipated. ⁴ Hence, Brasseal contends that the actions of plaintiff in slowing his truck at the approach of the police vehicle and continuing at that rate of speed on the downhill side of the rain-slick overpass created a virtual trap for him that he could not reasonably have foreseen. Thus, he argues that he has overcome the presumption of negligence against him.

We disagree. As noted above, the actions of plaintiff were reasonable and proper under the circumstances. On the other hand, we find that Brasseal failed to satisfy the standard of conduct in R.S. 32:81 in that he followed the Eubanks vehicle '. . . more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.' It was raining, and the slick condition of...