Hanover Fire Insurance Company v. Sides

• Decision Date: 26 July 1963
• Docket Number: No. 19917.,19917.
• Citation: 320 F.2d 437
• Parties: HANOVER FIRE INSURANCE COMPANY, Appellant, v. Martha SIDES and Russell L. Sides, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

320 F.2d 437 (1963)

HANOVER FIRE INSURANCE COMPANY, Appellant, v. Martha SIDES and Russell L. Sides, Appellees.

No. 19917.

United States Court of Appeals Fifth Circuit.

July 26, 1963.

P. A. Bienvenu, Bienvenu & Culver, and Timothy J. McNamara, New Orleans, La., for appellant.

Robert J. Mack, of Sims & Mack, Hammond, La., for appellees.

Before PHILLIPS,^* WISDOM and GEWIN, Circuit Judges.

PHILLIPS, Circuit Judge.

Russell L. Sides and his wife, Martha Sides, filed separate actions against Hanover Fire Insurance Company to recover damages for personal injuries and property loss sustained in an automobile collision between their passenger automobile and a truck owned by Florida Parishes Distributing Company and operated by its employee, A. A. Duplessis, acting in the course of his employment. The collision occurred on U. S. Highway 51, between LaPlace, Louisiana, and Ponchatoula, Louisiana. At the time of the collision, Hanover had in force and effect a policy of liability insurance covering the Distributing Company's truck. The actions were brought against Hanover under the Louisiana Direct Action Statute (LSA-R.S. 22:655) and were consolidated for trial. The jury returned verdicts of $12,800 for Russell Sides and $4,900 for Martha Sides. A joint judgment was accordingly entered and Hanover has appealed.

Highway 51 is the main road between LaPlace, Louisiana, and Ponchatoula, Louisiana. It is a two-lane road of average width and at the time of the accident was full of "ruts, holes, and bumps and waves." Duplessis and the Sides traveled through rain throughout the morning of March 26, 1959, the day of the accident, and it was raining when it happened. The collision occurred just south of the point where Highway 51 crosses North Pass. A new bridge over such Pass had been constructed and the approach to such new bridge angled off to the west from Highway 51 for a short distance and then ran north to the new bridge. The approach road was surfaced with shells and at some time prior to 10 a. m. on March 26, 1959, employees of the State Highway Department barricaded the highway south of the old bridge and commenced detouring traffic from the old road over the south approach to the new bridge, in order to gain compaction of the surfacing material on such approach road.

Signs which the Highway Department had erected along Highway 51 to the south from the barricade were in place as Duplessis and the Sides approached the point where the approach road to the new bridge joined such highway — the detour point. Such signs were: One reading, "Slow Repairs" 1,000 feet south of the new construction area; to the north of such sign, one reading, "15 Mile Speed Limit"; approximately 400 feet south of the detour point, a sign reading, "Barricade Ahead"; about 230 feet south of the detour point a sign reading, "Slow"; just south of the detour point one reading, "Detour" with an arrow pointing to the west, or left.

There were also two detour signs with arrows pointing to the west on the barricade, but shortly before the accident, because of the rain, the Highway Department decided to close the detour and reopen the old road. It had removed the barricade, but had not taken down any of the signs mentioned above, except the two on the barricade, prior to the accident.

Mr. and Mrs. Sides were traveling north on Highway 51 in their 1955 Oldsmobile automobile and at approximately 10 a. m. they approached the segment of road where the above-mentioned signs had been erected. Sides observed such signs. Because of the rain and road conditions, he had been traveling 20 to 25 miles per hour. When he observed the warning signs, he reduced his speed. As he approached the detour sign, he saw such sign, the approach road to the new bridge, such bridge, and the old bridge. He saw no barricade, because it had been removed. He was uncertain whether he should turn to the left, onto the approach road to the new bridge, or continue on to the old bridge. He testified that being thus uncertain, he further reduced his speed by removing his foot from the gas pedal and letting the vehicle coast. Mrs. Sides testified he had slowed down to 15 miles per hour before the accident. Sides further testified that he neither turned to the right nor to the left, that he knew he "didn't make any turns"; and that before he had made up his mind which way he should go, he lost consciousness and remembered nothing more until he regained consciousness in his automobile, which had stopped in a highway drainage canal along the highway and was sitting in water. Mr. and Mrs. Sides got out of the automobile and waded out of the canal. The canal water was knee-deep. Sides further testified he did not hear the truck approaching or a horn just before the collision.

Mrs. Sides further testified she was riding on the right-hand side of the front seat of the automobile; that she saw the signs mentioned above; that Sides had been driving 25 miles per hour, but slowed down when he observed the warning signs, and that as he approached the detour sign he was not traveling over 15 miles per hour; that the detour road appeared "very shelly" and they expressed doubt that it would support an automobile; that Mr. Sides was uncertain which way to go; that he further reduced his speed by "coasting," but that he "did not turn"; that while he was undertaking to determine which way to go the impact came and she remembered nothing more until she regained consciousness in the automobile, which had stopped in the canal.

About a mile south of the old North Pass Bridge on Highway 51, there is another bridge, known as Manchac River Bridge. The grade of the south approach to the Manchac Bridge is four and one-half per cent.

Duplessis testified that he was familiar with Highway 51; that he had been driving over it five days a week for three years; that he knew the highway was slippery when wet; that prior to the accident he had followed the Sides automobile for six to ten miles; that the distance between his truck and the Sides automobile varied, but it was always within the range of his vision; that his truck was loaded; that he was traveling approximately 25 miles per hour. He admitted he did not see the warning signs and did not reduce his speed until he saw the Sides automobile's brake lights show about 150 yards ahead of him, just shortly before the accident. He further testified that as he came onto the approach of the Manchac Bridge, because of the grade he shifted to a lower gear, and that the Sides automobile traveled faster over the approach and bridge and increased the distance between it and the truck, and that after he crossed the Manchac Bridge he gained on the Sides automobile until he was only 150 yards behind it; that when he reached that distance from the Sides automobile, he saw its brake lights go on and then it "seemingly pulled over to the righthand side of the road" and he thought it was going to pull over onto the shoulder and he decided to go around the Sides automobile and that he blew his horn and resumed his speed and as he got up to the Sides automobile he saw it "coming back across the highway"; that he sounded his horn again and pulled over onto the left shoulder of the road and his truck collided with the Sides automobile; that his truck traveled a distance of 140 feet after the collision before it stopped; and that the road was very slippery. He testified further that the Sides automobile was traveling very slowly at the time of the collision; and that the tire rack immediately in front of the rear trailer wheels collided with the Sides automobile.

However, a member of the Louisiana State Police, who investigated the accident about an hour after it occurred, testified that he examined the marks on the truck caused by the collision; that they showed the area of impact on the truck was the side of an extra tank, known as a saddle tank, located on its right side, immediately behind the cab; that the tank did not protrude outwardly farther than the side of the cab; that the left rear of the Sides automobile was mashed inward and that the highway was "awfully slippery."

Photographs of the Sides automobile taken after the collision and admitted in evidence show that the areas of impact on such automobile were the rear of the left rear fender, the left side of the rear bumper, and the left rear of the trunk. In other words, they showed the Sides automobile was struck from the rear and not from the side. They show also that the Sides automobile was crushed by the impact over the area embracing the left half of the rear bumper, the left half of the trunk lid, and the left fender behind the left rear wheel.

An employee of the Highway Department, who was sitting in a truck a short distance south of the detour sign, testified he observed the Sides automobile and the truck as they passed him; that in his opinion the truck was traveling 40 miles per hour; that he heard the noise caused by the impact as they collided; and that he looked and saw the automobile in the canal and the truck trying to "get back straight up on that Main 51 highway."

The state police officer testified Sides stated he was in the process of making a left turn when the accident occurred. Sides testified he did not remember making any such statement; that he was most surprised when he heard such testimony by the police officer, and if he made such statement he must have been dazed; that he knew he did not make any turns.

Sides testified that he had paid $3,800 for his automobile; that at the time of the collision it had been driven about 22,000 miles; and that after the collision he sold the salvage for $225.

At the time of the trial, March 29, 1962, Sides was 68 years of age. He was employed by the Shaeffer Pen Company for a long period of years, but had retired in 1959, before the accident. Following the accident, the Sides went to Ponchatoula, Louisiana, where they were examined at Scott's...