Ardoin v. Southern Farm Bureau Cas. Ins. Co.

• Decision Date: 17 April 1961
• Docket Number: No. 231,231
• Citation: 133 So.2d 129
• Parties: Kimball ARDOIN, Plaintiff & Appellee, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Defendant & Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 129

133 So.2d 129

Kimball ARDOIN, Plaintiff & Appellee, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Defendant &amp Appellant.

No. 231.

Court of Appeal of Louisiana, Third Circuit.

April 17, 1961.

On Rehearing Sept. 20, 1961.

Fruge & Foret, by J. Burton Foret, Ville Platte, for defendant-appellant.

Tate & Tate, by Paul C. Tate, Mamou, for plaintiff-appellee.

Before SAVOY, HOOD and CULPEPPER, JJ.

HOOD, Judge.

This is an action for damages arising out of a collision between plaintiff's truck, driven by Elwood P. Reed, and a truck owned and being driven by Marion Hoffpauir. Defendant was the public liability and property damage insurer of the Hoffpauir vehicle at the time of the accident. After trial of the case on its merits, judgment was rendered in favor of plaintiff and defendant has appealed from that judgment.

The accident occurred between 7:00 and 8:00 o'clock on the morning of November 24, 1958, on State Highway 13 between the Towns ofMamou and Eunice, in Evangeline Parish. The highway at that point is a straight, blacktopped, two-lane highway, with shoulders on both sides wide enough for large, heavy trucks to park on them without blocking either lane of traffic.

Earlier that morning Hoffpauir had picked up a load of gravel in his dark blue Ford truck at a gravel pit located at Turkey Creed, Louisiana, about 25 or 30 miles from the scene of the accident. In traveling south on State Highway Route 13 toward Eunice, the Hoffpauir truck was following another gravel truck being driven by Roy Morgan. The weather that morning was extremely damp and foggy, and maximum visibility was limited to approximately 150 feet. The headlights of both of the vehicles involved in the accident were burning at the time the collision occurred.

When Hoffpauir was about five miles south of Mamou he noticed that the inside, right rear dual tire on his truck was flat. By using a pre-arranged signal with his headlights, Hoffpauir notified Morgan, who was driving the truck ahead of him, that he was in trouble. Upon seeing Hoffpauir's signal Morgan drove his truck on the right shoulder of the road and waited until Hoffpauir caught up with him. Hoffpauir parked his truck partially on the right, or west, shoulder of the road and partially on the blocktopped portion, the purpose of leaving a portion of his truck on the hard-surfaced part of the road being to provide a solid foundation for the jack which he intended to use in changing the tire. Although Hoffpauir knew that there was a grocery store with a graveled parking area located about two miles farther down the highway, he elected to stop immediately rather than to run the risk of ruining the flat tire by continuing to drive this additional distance to the parking area. Hoffpauir parked his truck in such a manner that the southbound lane of traffic was partially obstructed by that vehicle.

After Hoffpauir's truck had been parked in that position for a period of at least five or ten minutes, plaintiff's tank truck, which was being driven in a southerly direction on State Route 13, approached the parked Hoffpauir truck from the rear. Plaintiff's truck at that time was loaded with gasoline weighing approximately 12,000 pounds. Reed, the driver of plaintiff's truck, testified that immediately prior to the accident he was driving at a speed of 35 or 40 miles per hour, that he noticed an object on the highway about 130 or 140 feet ahead of him in the fog, and that he thereupon began to decrease his speed. When he reached a point from 60 to 80 feet from this obstacle, he realized that it was a parked truck (the Hoffpauir truck). Reed further testified that he then immediately applied his brakes and started to pass the parked truck on its left, but was unable to do so because at that time he met another vehicle approaching from the opposite direction. A collision then occurred, the right front fender and side of plaintiff's truck striking the left rear portion of the Hoffpauir vehicle. The evidence shows that at the time of the collision plaintiff's truck was traveling at a speed of from three to five miles per hour, that the impact caused the Hoffpauir truck to move forward only a few feet, and that plaintiff's truck was brought to a stop almost immediately.

Hoffpauir testified that during the entire time his truck was parked on the highway and at the time of the collision, the left rear directional light was blinking. He also testified that from the time he parked until the accident occurred, he was attempting to unlock the red reflectors which were attached to the side of his truck so that they could be used to warn approaching vehicles, but that he had been unable to do so. Although Roy Morgan was with him at that time, no attempt was made by Hoffpauir or by Morgan to take the flares or reflectors from Morgan's truck and use them in warning oncoming traffic. Also, no attempt was made by either of them to flag down approaching vehicles. Hoffpauir's testimony that his directional lights were blinking at the time of the accident is corroborated by the testimony of Morgan, but Reed testified that he saw no lights on the Hoffpauir truck as he approached it.

The trial judge found that Hoffpauir was negligent in failing to warn approaching vehicles of the danger, although he had ample time within which to do so, in parking his truck in such a manner as to partially obstruct the hard-surfaced portion of the highway, and in failing to drive a little farther to a crossroad before bringing his truck to a stop. He concluded that these acts of negligence on the part of Hoffpauir constituted the sole proximate cause of the accident, and that the driver of plaintiff's truck was free from contributory negligence.

We find no manifest error in the conclusions reached by the trial judge that the driver of the insured truck had ample time within which to move his truck off the hard-surfaced portion of the highway, or to warn approaching motorists of the danger, and that he was negligent in failing to take either of these precautions under the circumstances presented here. LSA-R.S. 32:241, 32:442; O'Rourke v. McConaughey, La.App.Orleans, 157 So. 598; Hogue v. Akin Truck Line, La.App. 2 Cir., 16 So.2d 366; Giorlando v. Maitrejean, La.App.Orleans, 22 So.2d 564; Schneller v. Handy, La.App.Orleans, 93 So.2d 238.

Defendant, however, specially pleads in the alternative that the driver of plaintiff's truck was negligent in driving at an excessive rate of speed in the foggy weather which existed at that time, in failing to maintain a proper lookout, in failing to stop after seeing the parked truck ahead of him, and in failing to avail himself of the last clear chance to avoid the collision.

The jurisprudence of this State is well settled to the effect that when visibility is materially impaired because of smoke, mist, dust, fog or other atmospheric conditions, a motorist is held to a duty of operating his vehicle with an unusually high degree of care. He should reduce his rate of speed to such an extent and keep his car under such control as to reduce to a minimum the possibility of accident from collision, and as an extreme measure of safety it is his duty, when visibility ahead is not possible or is greatly obscured, to stop his car and remain at a standstill until conditions warrant going forward. He does not have a right to assume that his course of travel is free from danger or obstruction in the absence of his ability to see clearly ahead, but if he continues to travel as if he knew there was perfect clearance ahead, he does so at his own risk and peril. Demerest v. Travelers Insurance Company, 234 La. 1048, 102 So.2d 451; Pepper v. Walsworth, La.App. 2 Cir., 6 La.App. 610; O'Rourke v. McConaughey, supra; Hogue v. Akin Truck Line, supra; Giorlando v. Maitrejean, supra; Thiaville v. Toups, La.App.Orleans, 25 So.2d 361; Hecht v. Toye Bros. Yellow Cab Co., La.App.Orleans, 62 So.2d 520; Price-Dunham-Fenet Brick Mfg. Co. v. Reeves, La.App. 1 Cir., 85 So.2d 635; Schneller v. Handy, supra; Ervin v. Burns, La.App. 2 Cir., 126 So.2d 805.

In Demerest v. Travelers Insurance Company, supra, plaintiff brought suit to recover damages for the death of his wife who was killed when the car which she was driving was struck in a dense fog by a car driven by Blackwell, defendant's assured. In finding that Blackwell was negligent, and that his negligence was the proximate cause of the accident, the Supreme Court held that Blackwell had not met the standard of care required because he was operating his car at an excessive rate of speed, when atmospheric conditions limited his visibility to not more than 200 or 300 feet. The Supreme Court said:

'With reference to the particular circumstances which prevailed here the jurisprudence of this state is that: '* * * when visibility is materially impaired because of smoke, mist, dust, etc., a motorist should reduce his rate of speed to such extent and keep his car under such control as to reduce to a minimum the possibility of accident from collision; and as an extreme measure of safety, it is his duty, when visibility ahead is not possible or greatly obscured, to stop his car and remain at a standstill until conditions warrant going forward. * * * ' Hogue v. Akin Truck Line, La.App., 16 So.2d 366, 368. See also Rector v. Allied Van Lines, Inc., La.App., 198 So. 516; Penton v. Sears, Roebuck and Company, La.App., 4 So.2d 547; Bernstein v. Cathey and Carrell Truck Lines, La.App., 32 So.2d 403 and Rachal v. Balthazar, La.App., 32 So.2d 483.' (234 La. 1048, 102 So.2d 454)

In O'Rourke v. McConaughey, supra (157 So. 606), plaintiff's car stalled in the inside lane of a four-lane city street early on a foggy morning. Visibility was only five or six feet, but the lights on plaintiff's car were burning and passenger in it was sounding the horn. Plaintiff's car was struck in the rear by an automobile driven by defendant. In finding that defendant's negligence was...