Bergeron v. Department of Highways

• Decision Date: 02 June 1952
• Docket Number: No. 40301,40301
• Citation: 221 La. 595,60 So.2d 4
• Court: Louisiana Supreme Court
• Parties: BERGERON v. DEPARTMENT OF HIGHWAYS et al. In re DEPARTMENT OF HIGHWAYS et al.

Page 4

60 So.2d 4

221 La. 595

BERGERON v. DEPARTMENT OF HIGHWAYS et al. In re DEPARTMENT OF HIGHWAYS et al.

No. 40301.

Supreme Court of Louisiana.

June 2, 1952.

Rehearing Denied July 3, 1952.

A. Deutsch O'Neal, Houma, for plaintiff-respondent.

LeBLANC, Justice.

This is an action in tort arising out of an accident which happened in the City of Houma on December 16, 1947 in a collision between a bicycle which was being operated by a young man named Floyd Bergeron and a dump truck belonging to the Department of Highways of the State of Louisiana, being driven at the time by one of the Department's employees, Jeffrey LeBoeuf. The suit was instituted by the young man's father seeking to recover damages for himself in the way of expenses incurred in the treatment of his son who was seriously injured and a large amount of damages for personal injuries for and on behalf of his said son.

As a result of trial in the District Court, judgment went against the plaintiff and in favor of the defendants, dismissing the suit. On appeal to the Court of Appeal for the First Circuit, by a divided court, the judgment of the district court was reversed and damages were awarded in favor of the plaintiff. See 50 So.2d 337, 338. Because of the doubt we entertained on the applicability of the rule of the last clear chance by the Court of Appeal, defendants' application for writs of certiorari was granted and the whole case is now before us for review.

In the main, both the District Court and the Court of Appeal agreed on the facts in the case and it was with respect to a few minute details in computing the respective speed of the truck and the bicycle and the distance it takes to stop a vehicle such as this truck, traveling at certain rates of speed, that they disagreed.

As did both courts, we find it important that the locus of the accident be described. It is reproduced in detail upon a plot or sketch drawn by Robert H. Wright, C. E., which was introduced in the record as a joint exhibit by the parties. With this exhibit before it the Court of Appeal described it as follows:

'West Main Street in the City of Houma (also State Route No. 69) runs east and west and consists of an 18 foot concrete slab built by the State and two concrete slabs each 9 feet in width on each side thereof built by the City of Houma, making in all a 36 foot paved street. On the south side of the street there is a 5.5 foot concrete sidewalk abutting the pavement mentioned above. The sidewalk is not curbed and is on the same general level as the street. The evident reason for the construction of the sidewalk in such fashion is that immediately to its south is the freight yard of Morgan's Louisiana and Texas Railroad, which fronts thereon for a distance of approximately 160 feet. Five spur tracks traverse the sidewalk and street within this distance. It is clear from the evidence that for a number of years trucks and other vehicles have used this entire frontage as a means of ingress and egress to and from the yards to the freight cars spotted thereon.'

With that location in mind we proceed to examine the facts in the case which are as follows: Young Bergeron, about 15 years old, was returning home from Terrebonne High School on his bicycle at about 4:00 o'clock in the afternoon. The high school is located on Highway No. 69, which leads from out of the City of Houma to Thibodaux, a short distance from the scene of the accident.

Both courts agree, in view of the allegations of the petition, although there was an attempt made to introduce testimony to the contrary, that he was riding his bicycle on that part of the street referred to on the map as the 5.5 foot concrete sidewalk. At the time of the accident, and shortly before, a truck belonging to Patterson Mud and Chemical Company was in the process of being hooked on to a railroad car, on spur track No. 4 which it was going to tow across Main Street and locate at their warehouse which is situated north of the street. The truck itself at the time we are speaking of was facing north and both courts agree that the front portion extended over and across the sidewalk along which young Bergeron was riding his bicycle. At the time when he was approaching the Patterson truck the highway truck had reached that part of the street where the driver intended to make a left hand turn in order to go into the area of the railroad yard as at that time the highway department was hauling gravel from that area. The driver proceeded to make his turn and after he had reached a point where the front end of his truck was crossing over the sidewalk, the young man on the bicycle ran into the front part of the right front fender of the truck. He was thrown from his bicycle which went forward a few feet and he fell under the truck. Before it could be brought to a stop, the rear right wheel ran over him causing him the injuries he sustained. When the truck came to a stop he was about two feet behind it.

Both courts found that young Bergeron was grossly negligent in not looking where he was going and not observing the highway truck in front of him as it made its turn. Both courts also found that the truck driver was not negligent at the time he began making his left hand turn, at which time the bicycle was not visible to him since it was still back of the front part of the Patterson truck. As there was no other traffic to impede his progress in making the turn he was safe in starting to do so.

The trial judge then comments upon the possibility of the driver of the truck averting the accident once he had started to make the turn, and in order to reach the conclusion he did, he goes into some detail about the respective speed of the two vehicles, the distance they were from each other and from the point of contact. He also comments on the time required for reaction and for the application of brakes by an automobile driver under the circumstances, from all of which he determined that even though the bicycle had come or may have come within that truck driver's vision after he started to make the turn it would have been impossible for him to avoid the accident. The trial judge concluded that from thence on, the truck driver's only logical course was to pursue and persist in making the turn and in giving most of his attention to the direction in which his truck was traveling, that is, ahead of him.

The Court of Appeal, in expressing its disagreement with the district judge on the point of the truck driver's duty after he began making his turn, also based its judgment largely upon a calculation of relative speeds and of distances. They concluded that while he was in the process of making the turn, had he, as he could have, directed his attention forward, he would have seen the bicycle emerging from around the Patterson truck in time to have discovered the rider's danger. Had he then taken proper precaution considering the speed of both vehicles and the time that it would take him to stop his truck at the speed it was going, he would have avoided the accident. Thus, the court found that the last clear chance was with the driver of the truck and...