Baden v. Globe Indemnity Co
| Decision Date | 31 March 1933 |
| Docket Number | 4421 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | BADEN v. GLOBE INDEMNITY CO |
Phanor Breazeale, of Natchitoches, for appellant.
Stephens & Gahagan, of Natchitoches, for appellee.
The facts and the pleadings in this case are fully discussed and reviewed in the majority opinion of this court and in the dissenting opinion of Judge Palmer, reported in 145 So. 53 57.
This court, as then constituted, held that contributory negligence on part of plaintiff's deceased husband was not made an issue in the case by the pleadings, and that the testimony of witnesses to the effect that deceased was driving his car at moment of collision with the Johnson car too far to his left side, admitted without objection, did not enlarge the pleadings so as to present the issue of contributory negligence, as this testimony was admissible under other issues definitely raised by the pleadings. Our former opinion also holds that the evidence shows that the Johnson car was being operated at time of the collision without headlights burning, which was negligence, and caused the accident, and that the collision took place near the center of the road.
Further consideration of the case has led us to the conclusion that the admitted testimony which establishes contributory negligence on part of Baden, clearly admissible under a special plea of contributory negligence, did have the effect of enlarging the pleadings and supplying the issue of contributory negligence, omitted by defendant's answer. We have also reached the conclusion that defective or ineffective lights on the Johnson car, or absence of lights entirely therefrom, was not the proximate cause of the collision, but that the negligence of deceased himself in driving his car in the center of the road, or on his left hand side, was the proximate cause of the collision.
With regard to the correlative duties of the operators of both cars, the following observations may be made: If the lights of both cars were burning brightly immediately prior to and at time of accident, the operator of the one could and should have seen the other at considerable distance, as they approached each other. If the lights of one were burning and those of the other were not, in such case, there is no good reason why the operator of the one without lights could not have seen the car with lights at a distance and time within which a collision would and could have been averted, if either was in whole or in part on the wrong side of the road. If Baden observed, or, by exercise of reasonable care, could have observed, the Johnson car 50 feet ahead of him, as one of his companions did, there seems no valid reason why his car could not have been brought under such control then and there as to have avoided the accident, even if the Johnson car was not entirely on its proper side of the highway, and especially could this have been done if the left wheels of the Baden car were following the black (middle) line in the road, as testified to by one of Baden's companions. If the Baden car had bright lights, as contended by plaintiff and he had been keeping a proper lookout ahead, as was his duty, we cannot understand why he could not have seen the Johnson car, whether its lights were burning or not, in time to have averted the collision. The purpose of equipping cars with bright headlights is to enable the operator to observe conditions in the road ahead. The rule is well established that it is negligence to operate a car at such rapid rate of speed that it cannot be stopped within the...
To continue reading
Request your trial