Bailes v. Casualty Reciprocal Exchange, 12084

• Decision Date: 30 May 1973
• Docket Number: No. 12084,12084
• Citation: 279 So.2d 255
• Parties: James Vance BAILES et al., Plaintiffs-Appellants, v. CASUALTY RECIPROCAL EXCHANGE et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 255

279 So.2d 255

James Vance BAILES et al., Plaintiffs-Appellants, v. CASUALTY RECIPROCAL EXCHANGE et al., Defendants-Appellees.

No. 12084.

Court of Appeal of Louisiana, Second Circuit.

May 30, 1973.

En Banc. Rehearing Denied June 25, 1973.

Writ Refused Aug. 29, 1973.

Burnett, Harrison & Sutton by Bobby D. Sutton, Shreveport, for plaintiffs-appellants.

Bodenheimer, Jones, Klotz & Simmons by G. M. Bodenheimer, Jr., Shreveport, for defendants-appellees.

Before AYRES, HEARD and HALL, JJ.

HEARD, Judge.

This wrongful death action was brought individually by the parents of 15 year old Steve Bailes, with James V. Bailes also suing as administrator of his deceased son's estate. Young Bailes was critically injured June 19, 1971, when the 1970 Honda motorcycle he was driving collided with a 1971 Ford LTD attempting a left turn. He died three days later.

Defendants are Wilbert J. Maxey, individually and as administrator of the estate of his then 17 year old daughter, Bernadette, driver of the car, and his liability insurer, Casualty Reciprocal Exchange. They denied liability and pled contributory negligence.

The accident occurred on the above date about 4:00 P.M. when the weather was clear; it was daylight, and the road surface was dry concrete. Miss Maxey was attempting a left turn from the inside westbound lane of Lakeshore Drive into the private driveway of the residence of Herschel Cobb. The western edge of the driveway is 103 .2 feet east of the center of the intersection of Lakeshore Drive, Lakeshore Drive Extension, which continues to the west, Curtis Lane, intersecting from the south, and South Lakeshore Drive, intersecting from the north. This intersection is controlled by several traffic lights, and the measurements used were made from a point directly under the center lights of the intersection. Lakeshore Drive Extension drops off in a sharp decline approximately 100 to 120 feet west of the intersection. Immediately in front of the driveway are the two eastbound lanes of Lakeshore Drive having a combined width of 20 feet 9 1/2 inches. There is then an opening of 48 feet 6 inches between two concrete medians to the east and west of the opening. Next are the three westbound lanes of Lakeshore Drive with the southernmost lane used for left turning vehicles at the above intersection.

The trial judge rendered judgment in favor of defendants, rejecting plaintiffs' demands. It was the court's opinion that Miss Maxey started the forward movement of her vehicle to cross Lakeshore Drive at a time when the motorcycle had not yet come into view; had she observed it after she reached a point near the center line, and at which point the court concluded the motorcycle was in the approximate area of the intersection, she would not have been able to avoid the accident because, in the time necessary to apply her brakes and bring her car to a stop, it would have resulted in her blocking both lanes of traffic. It further found Steve Bailes negligent in failing to observe her vehicle in motion and in failing to take any type of evasive action to attempt to avoid the collision as he had adequate distance and time within which to do so, according to a chart the judge used. We reverse this judgment.

Miss Maxey testified she pulled into the left turn or southernmost westbound lane, stopped and saw no oncoming or eastbound traffic. She looked to see if Herschel Cobb, Jr.'s car was in the carport, and seeing it there, she began her turn. After beginning the turn she then saw Herschel Cobb, Jr. standing in his front door. As the front of her car reached the edge of the driveway, she stated she glanced to her right and saw the helmet of a motorcycle rider just topping the hill. She then accelerated trying to get out of the way, but the motorcycle collided with the car at its right rear door. The point of impact was very near the center line of Lakeshore's two eastbound lanes according to the investigating officers and other witnesses.

Three other eyewitnesses, however, placed the motorcycle much closer to the point of impact. B. L. Wooley and Glenn Farrar, who were facing south waiting for a red light on South Lakeshore Drive, saw the motorcycle approach the intersection from the west and followed it throught he intersection. Wooley stated he saw the Maxey vehicle in motion with its front not yet to the center line when the motorcycle was just past the eastern edge of the intersection. Farrar placed the vehicles closer together. He testified he first saw the car in motion when its front wheels were about at the center line and the motorcycle was a little less than halfway between the intersection and the driveway. Herschel Cobb, Jr. was standing on his porch and could see to the center of the intersection right under the lights. He saw the motorcycle directly under these lights when the front of the Maxey vehicle was at the center line. From this testimony, the trial judge reached the above findings and concluded that Miss Maxey was not negligent. We cannot agree with this conclusion.

The trial court's finding that Miss Maxey commenced her left turn before the motorcycle came into view is manifestly erroneous. Miss Maxey had an unobstructed view of some 103 feet from the driveway to the intersection and 100--120 feet beyond the intersection. The photographs entered in evidence clearly indicate a motorist in Miss Maxey's position could have see vehicles approaching from the west before they reached the crest of the hill.

Miss Maxey testified the light facing her was yellow as she began her turn. James H. Downs of the Traffic Engineering Department, answered a hypothetical question that the light...