Bland v. Interstate Fire & Cas. Co.

• Decision Date: 15 April 1975
• Docket Number: No. 6739,6739
• Citation: 311 So.2d 480
• Parties: Joseph A. BLAND et al. v. INTERSTATE FIRE AND CASUALTY CO. et al.
• Court: Court of Appeal of Louisiana — District of US

Page 480

311 So.2d 480

Joseph A. BLAND et al. v. INTERSTATE FIRE AND CASUALTY CO. et al.

No. 6739.

Court of Appeal of Louisiana, Fourth Circuit.

April 15, 1975.

Edmond R. Eberle, New Orleans, for plaintiffs-appellants.

Porteous, Toledano, Hainkel & Johnson, John J. Hainkel, Jr., and E. Ross Buckley, Jr., New Orleans, for defendants-appellees, A. J. Melancon and Mary Melancon.

Reuter & Reuter, Arthur C. Reuter, Jr., New Orleans, for third party defendants-appellees, Joseph Bland and Interstate Fire and Cas . Co.

Before SAMUEL, LEMMON and BOUTALL, JJ.

LEMMON, Judge.

This litigation involves a two-car collision. Plaintiffs Joseph Bland and Davis Alexander, the driver and passenger respectively in one automobile, have appealed from a judgment dismissing their damage suit against the driver of the other vehicle after a trial on the merits. The principal issue is whether the record supports the trial judge's finding that Bland was concurrently negligent.

The accident occurred about dusk on U.S. Highway 90 in St. Charles Parish. At the point of the collision the east-west highway was straight and consisted of four traffic lanes divided by a neutral ground approximately eight feet wide. The posted speed limit was 55 miles per hour. Both vehicles had their headlights on at the time.

Just before the accident occurred, Bland was traveling west on the highway, while Mrs. Mary Melancon, driver of the other car, was entering the highway from a side road.

Bland testified that he was traveling in the right or outside lane at about 45 miles per hour; that he saw Mrs. Melancon stopped at the stop sign when he was about a block away from the intersection; that when she entered the highway from his left, he continued at the same speed, having no reason to alter his course of driving; that she crossed the two eastbound lanes and the neutral ground area and 'kept coming,' making a left turn and striking the left rear fender of his vehicle just as he cleared the intersection; and that he applied his brakes only after being struck.

On the other hand, Mrs. Melancon testified that she stopped for the stop sign and waited for several eastbound vehicles to pass; that when she looked to her right, she saw two westbound cars at least two blocks away (beyond the Bunny Quick Store, which was subsequently established to be 625 feet from the intersection); that she had proceeded across the eastbound lanes, had completed a left turn, had traveled about half a block in the inside lane, and had attained a speed of about 30 miles per hour when she felt an impact on the right front door. She admitted she neither paused nor looked to the right again when she reached the median area because 'the cars were so far down that I just presumed I had a clear turn.'

Mrs. Melancon's passenger verified that the very slight impact did not occur until they had completed the turn and straightened out in the inside lane.

Bland's vehicle came to rest in the right lane (perhaps with his right wheels on the right shoulder) 293 feet from the intersection. A single skid mark was found near the right edge of the road, the record being unclear whether the skid mark was on the highway or on the right shoulder. The skid mark began just past the intersection and ended at the point where Bland's right rear tire came to rest. No glass, dirt or other debris was found on the highway.

The versions conflict as to whether the impact occurred in the left or right westbound lanes and as to whether the collision was virtually in the intersection or a half block up the highway. The right wheel skid mark, beginning approximately in the intersection and located near the right edge of the roadway, belies Mrs. Melancon's version that Bland crossed the center line and performed a sideswiping maneuver a considerable distance beyond the intersection. This physical evidence further supports Bland's version that he had just traversed the intersection when struck on the rear fender and that he immediately applied his brakes, setting down the skid mark. Finally, the location of the minor damage on Bland's left rear fender near the taillight and on Mrs. Melancon's right front door indicates Bland's version as more plausible.

We therefore conclude Mrs. Melancon's negligence in failing to yield the right of way and in encroaching into Bland's lane at some point in the vicinity of the intersection was a legal cause of the accident. We cannot conclude, however, from the record that Bland was contributorily negligent.

The investigating officer testified that Bland stated he was traveling 65 miles per hour and that Bland smelled of alcohol and was staggering. Other witnesses established that Bland's speech was slurred and his coordination was impaired. The trial judge's finding of contributory negligence was primarily founded on drunkenness and excessive speed. While we agree that the record supports factual findings that Bland was intoxicated and that he was exceeding the speed limit by about 10 miles per hour, defendants have failed to prove that either of these factors was a contributing...