Bailey v. Reggie

• Decision Date: 30 June 1945
• Docket Number: 2720.
• Citation: 22 So.2d 698
• Court: Court of Appeal of Louisiana — District of US
• Parties: BAILEY v. REGGIE et al.

22 So.2d 698

BAILEY v. REGGIE et al.

No. 2720.

Court of Appeals of Louisiana, First Circuit

June 30, 1945

Davidson & Davidson, of Lafayette, and Pugh, Buatt & Pugh, of Crowley, for appellants.

N Curtis Petitjean, of Rayne, and McCoy & King, of Lake Charles, for appellee.

LE BLANC Judge.

The plaintiff is the widow of Benjamin H. Bailey who was killed when he was struck by a truck belonging to the defendant, Emile Reggie which was insured against public liability by his co-defendant, The Highway Insurance Underwriters. It was being driven by Clarence Doucet, an employee of the owner Emile Reggie. The accident happened on Sunday afternoon February 14, 1943, on State highway No. 26 which runs directly north and south between Crowley and Eunice. Her husband was instantly killed in the accident and she has instituted this suit to recover damages for his death against both defendants, in solido, in the sum of $20,240.47, for herself, and in the further sum of $6,500 in her capacity as the natural tutrix of her minor son, Edward Gerald Bailey, issue of her marriage with her said deceased husband.

The deceased was employed as foreman of a crew working for the Department of Highways of the State of Louisiana and on the afternoon of the accident they were actively engaged in working on the highway at the point and in the vicinity where the accident occurred. The United States Fidelity & Guaranty Company carried compensation insurance for the Louisiana Department of Highways and it became obligated to and did pay the widow compensation in the sum of $10.50 per week up to the time this suit was filed and acknowledges its obligation to pay an additional period at the same rate up to 300 weeks. It also was obligated to pay the sum of $150 for funeral expenses. It therefore intervened in the suit and asked that it have and recover judgment from the defendants, in solido, for the sum of $3,300 and further that said judgment decree that the said amount be paid out of any award the plaintiff may obtain from the defendants and in preference to any payment made to her to the extent of the full amount of $3,300 with interest.

From the allegations contained in the plaintiff's petition we get a general idea of the situation which existed on the highway just before, and at the moment the accident took place. The equipment on the road consisted of three trucks and a grading machine which was pulled by a caterpillar tractor. About 4:45 o'clock in the afternoon, the three trucks had been parked on the west side of the highway which is a standard eighteen foot hardsurfaced road with shoulders adjoining on each side. This was at a point approximately five and one-half miles north of the City of Crowley, and the three trucks were parked one behind the other, all facing north. According to the allegations as made, there was a distance of about fifteen feet between the first truck, which is referred to as the Bailey Truck, and the second, referred to as the Foreman Truck. Between the second or Foreman truck and the third or last truck the distance was eighteen to twenty feet. The road machine unit was in operation at the time grading, or as it is referred to in the pleadings and in the testimony, 'pulling' the dirt from the ditch on the east side of the highway approximately sixty or seventy yards south of where the trucks were parked. The tractor which was pulling the grader was headed and going north.

After stating what the situation was, plaintiff then alleges that at that time her husband was standing on the west side of the highway, between the dividing line and center thereof and the west edge of the paved portion, a distance of four or five feet east, and the same distance north of the front or right front fender of the Bailey truck. That there was no other obstruction whatever to hinder the view of a driver of a vehicle approaching him, but that a truck with trailer attached, being driven north by Clarence Doucet at a speed of twenty-five miles per hour, without giving warning of his approach, struck her husband from the rear and as a direct and proximate result thereof, killed him instantly. She alleges that the driver, Doucet, was acting within the course and scope of his employment, a fact which is admitted by the defendants and which is not at issue in the case.

She alleges that the proximate cause of the death of her husband consisted in the following acts of negligence on the part of Doucet, the driver of the truck: (1) That he did not reduce his speed upon approaching the tractor and grader and the three trucks parked on the west side of the road after seeing the employees on the ground around these vehicles, to a speed where he could stop instantly in the event one of them should step in the front thereof; (2) that he did not blow his horn or give any other warning of his approaching after seeing the deceased standing on the west edge of the pavement; (3) that after seeing the deceased standing there, he turned his truck from the east travel portion, which was his right side to be on, to the west lane of travel on the pavement, which was his left or wrong side; and (4) that he did not stop his truck before striking the deceased, which he had plenty of time to do after seeing him standing on the pavement or after he should have seen him had he been keeping a proper look-out.

The allegations made by the intervenor in its petition of intervention, with regard to the manner in which the accident happened, and the charges of negligence made, are very much the same as those contained in the plaintiff's petition.

There was an exception of vagueness filed to both petitions which was overruled by the trial judge, after which the defendants filed a joint answer in which they admit that the accident happened at the point on the highway indicated in plaintiff's petition, but deny that it took place in the manner therein set out. They deny perticularly that the driver of the Reggie truck was guilty of any negligence or carelessness which brought about or contributed to the death of plaintiff's husband and aver that to the contrary, the sole, direct and proximate cause of the accident in which he was killed was his own gross negligence and carelessness in walking across a highly travelled public highway without stopping, looking or listening directly into the path of the on-coming truck which was traveling on its proper side of the road at a speed of about fifteen miles per hour.

Setting out their version of the accident defendants aver that the three trucks of the highway department were parked on the west side of the road but that the second truck which was referred to as the Foreman truck was parked about seven feet south of the first or the Bailey truck, and that all three trucks had their left wheels about one foot west of the west land of the asphalt pavement on the dirt shoulder and that all extended about six feet on the west lane of the paved portion of the highway. They aver that the road grader was being operated on the east side of the highway traveling in a northerly direction.

They then aver that Doucet, after checking his truck and trailer, left Crowley about four o'clock that afternoon on his way to Opelousas by way of Eunice. That he was traveling at about twenty miles per hour when he passed the caterpillar tractor and road grader and saw the three trucks parked ahead of him. That as he approached them he reduced his speed to about fifteen miles per hour being at that moment on the east side, which was the proper side of the road for him to be. That as he passed the Bailey truck he, for the first time, saw the decedent walking in an easterly direction across the road, against a high north wind which was blowing at the time, with a bucket in his hand. That up to that time he had been hidden from the truck driver's view by the three trucks. That on seeing him crossing directly in the path of his truck, Doucet realized that he could not stop in so short a distance nor could he hold to his right, on the east, because the decedent was then walking in that direction. He therefore swerved his truck to his left in an attempt to avoid striking him. The decedent made no attempt to avoid the accident which followed immediately as it was impossible for him to pull far enough to his left because of the trucks parked on that side. The deceased was struck by the right front fender of the truck.

In the alternative defendants plead that if it should appear that the driver of the truck was guilty of any negligence, decedent was guilty of negligence himself which caused or contributed to the accident for the reasons which have just been set forth.

The answer to the petition of intervenor follows the same lines as the answer to plaintiff's petition and liability for the compensation insurance which the intervenor has already paid or is obligated to pay is denied.

The case was tried before a jury which rendered a verdict which is worded as follows: 'Verdict for the plaintiff in her individual capacity in the sum of Thirty Two Hundred ($3200.00) Dollars, with interest, and in her capacity of natural tutrix in the sum of no Dollars. Verdict for intervenor in the sum of Thirty Three Hundred ($3300.00) Dollars, with interest. Signed E. E. Edmundson, Foreman.' The defendant filed a motion for a new trial which was overruled and judgment was then signed in accordance with the verdict of the jury. The defendants have taken and perfected the present appeal and the plaintiff has answered asking that amount of be amended by increasing the amount of the award to the sums prayed for and that as thus amended it be affirmed.

The facts up to the moment of the accident are not seriously disputed except with regard to the distance which the trucks...