Cassar v. Mansfield Lumber Co.

• Citation: 35 So.2d 797
• Decision Date: 08 March 1948
• Docket Number: 7144.
• Court: Court of Appeal of Louisiana (US)
• Parties: CASSAR et al. v. MANSFIELD LUMBER CO., Inc., et al.

35 So.2d 797

CASSAR et al. v. MANSFIELD LUMBER CO., Inc., et al.

No. 7144.

Court of Appeals of Louisiana, Second Circuit

March 8, 1948

Rehearing Denied April 1, 1948.

R C. Gamble, of Mansfield, and Cook, Clark & Egan, of Shreveport, for appellant.

Cawthorn & Golsan, of Mansfield, for appellees.

KENNON Judge.

This is a suit for $19,046.86 damages which plaintiffs alleged to be due as a result of an automobile accident on the road four and one-half miles south of Leesville, Louisiana on October 4, 1945. The petition alleged that the driver of defendant's truck made, without warning, a sudden and abrupt left turn in an attempt to leave the highway and get on a side road. At that moment plaintiffs were in the process of going around and passing defendant's truck and when the sudden left turn was made, the left front wheel, bumper and fender of defendant's truck struck the entire right side of plaintiff's car, knocking same a distance of fifty feet and turning it bottom side upward.

The defendants, Mansfield Lumber Company, Inc. and its insurer filed a joint answer in which the insurance coverage was admitted. It was alos admitted that defendant. Mansfield Lumber Company, Inc., was the owner of the truck involved in the accident and that its driver was the agent of the Mansfield Lumber Company, Inc., as alleged and that he was at the time acting in the course of his employment. The answer further set forth that the defendant's truck, just prior to the accident, was proceeding along the highway in a careful and cautious manner at a speed of not over fifteen miles per hour; that the driver made a proper signal for the left turn in ample time to assure the safety of approaching vehicles; that he looked in the rear view mirror and saw plaintiffs' car approaching, and knew that he had sufficient time in which to make the left turn, on the assumption that plaintiffs' car was traveling at a lawful rate of speed. The answer charged that the accident resulted solely from the negligence of Anthony C. Cassar in traveling at an excessive rate of speed, in failing to maintain a proper lookout, in not having his car under control; in failing to observe the left turn signal of the truck driver in failing to sound his horn in time and in failing to timely apply his brakes. In the alternative, and in the event the Court should hold the driver of the truck to be negligent, the defendants pleaded that the above listed acts of Anthony C. Cassar constituted contributory negligence barring his recovery and that the other plaintiff, Mrs. Helen Cassar, was guilty of contributory negligence in acquiescing in her husband's negligent operation of the car, in failing to maintain a proper lookout and in failing to give timely warning of the imminent danger which she either saw or should have seen.

The case was tried before Honorable Hal A. Burgess, who served as one of the presiding judges of the Eleventh Judicial District Court until the time of his death, which occurred shortly after the trial of this case and before a decision had been handed down. The case was then argued before Honorable Edwin M. Fraser, who rendered judgment in favor of plaintiffs for a total of $6,546.83. The defendants appealed.

The plaintiffs answered the appeal, praying that the judgment be amended by increasing the award to plaintiff, Mrs. Helen Cassar, by $5,000, and, as amended, affirmed.

Plaintiffs, Anthony C. Cassar and Helen Bordieri Cassar, were married in New York City on September 15, 1945. Using Mr. Cassar's 1945 Plymouth Sedan, they visited the West Coast, and then proceeded to Camp Polk, Louisiana to visit Mrs. Cassar's brother. On the morning of October 4, 1945, Mr. and Mrs. Cassar were proceeding north from Camp Polk with Mrs. Cassar's brother and a lady friend of his as passengers in the back seat. On that day defendant's driver had been dispatched with a light load of building materials to a building under construction on a graveled public road joining the paved highway #171 at a point 3 1/2 miles south of Leesville, Louisiana. The road turned west from this paved highway and defendant's driver, traveling south, should have made a right turn when he reached the graveled road, but he passed the turn, and, after realizing he had gone too far, turned around near the entrance to Camp Polk and proceeded north. The Cassar car was proceeding north behind this truck, and the collision occurred on the paved highway as Cassar was attempting to pass the truck on its left at the time that Blanchard, driver of the truck, was making his left turn into the graveled road.

Defendants cite pertinent paragraphs of Rules 7 and 8 of Section 3 of Act 286 of 1938, with emphasis on paragraph (c) of Rule 7 which provides that the driver of a vehicle shall not drive to the left side of the center line in overtaking and passing another vehicle traveling the same direction unless such left side is clearly visible and free from oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in perfect safety and providing that whenever an accident occurs under such circumstances, responsibility therefor shall rest prima facie upon the driver of the vehicle doing the overtaking and passing.

Plaintiffs' main contention is that the truck driver made the left turn after seeing the approaching car in his rear view mirror and when he should have known that such turn could not be made in safety.

Blanchard, driver of defendant's truck, testified that before beginning his left turn he looked into his rear view mirror and saw the Cassar car approaching and also heard the horn blow. The Court requestioned him on this point:

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