Bowers v. Hardware Mut. Cas. Co.

• Decision Date: 22 March 1960
• Docket Number: No. 9181,9181
• Citation: Bowers v. Hardware Mut. Cas. Co., 119 So.2d 671 (La. App. 1960)
• Parties: Mrs. Mabel BOWERS, Plaintiff-Appellant, v. HARDWARE MUTUAL CASUALTY COMPANY et al., Defendant-Appellant.
• Court: Court of Appeal of Louisiana

Page 671

119 So.2d 671

Mrs. Mabel BOWERS, Plaintiff-Appellant, v.HARDWARE MUTUAL CASUALTY COMPANY et al., Defendant-Appellant.

No. 9181.

Court of Appeal of Louisiana, Second Circuit.

March 22, 1960.

Ralph E. Halliburton and Smallenberger, Eatman & Morgan, Shreveport, for plaintiff-appellant.

Cook, Clark, Egan, Yancey & King, Shreveport, for Hardware Mut. Cas. Co., defendant-appellant.

Love & Rigby, Shreveport, for Yellow Cab Co. of Shreveport, Inc., defendant-appellee.

AYRES, Judge.

This is an action in tort arising out of a motor vehicle collision at the intersection of Herndon Avenue and Creswell Street in the City of Shreveport.

Involved in the collision were a Chevrolet automobile, owned and operated at the time by Miss Fannie Lou Davis, with whom plaintiff and Mrs. Nell Shipp were guest passengers, all seated on the front seat with plaintiff on the right-hand side, and a taxicab of the Yellow Cab Company of Shreveport, Inc. Made defendants were Miss Davis' public liability insurer and the cab company.

Negligence charged to each of the drivers, and relied upon by plaintiff for recovery, consists of their alleged failure to make proper observation of the traffic conditions or to keep their vehicles under control, and of excessive speed.Miss Davis is further alleged to have failed to heed the stop sign before entering the intersection; and the driver of the cab is alleged to have failed to pass to the rear of the Davis car or to stop in order to prevent the collision.Each of the defendants denies negligence attributable to its own driver and asserts that the proximate cause of the accident was the negligence of the other.

Trial was had before a jury.By its verdict, negligence charged to Miss Davis was held to constitute the sole and proximate cause of the accident and, pursuant to said verdict, there was judgment in plaintiff's favor for $8,500 against the defendant, Hardware Mutual Casualty Company.The driver of the taxi was exonerated from liability and plaintiff's action, as against the Yellow Cab Company of Shreveport, Inc., was dismissed.From the judgment thus rendered and signed, the defendant, Hardware Mutual Casualty Company, appealed suspensively and devolutively to this court.Plaintiff also perfected a devolutive appeal.The appeals, therefore, present, for determination, issues as to the defendants' liability and, if those issues are resolved adversely to defendants, or either of them, a question of quantum.

The record develops these facts as to the location of the accident and conditions immediately preceding its occurrence.Creswell Street runs in a general north and south course and, by city ordinance, traffic thereon has superiority of right over traffic from intersecting streets.Traffic is further controlled by a stop sign on Herndon Avenue.Each of the streets at the intersection had a width of 37 feet from curb to curb, except Herndon had a width of 29 feet west of the intersection.At the time of the accident, occurring at approximately 9:00 p.m. July 21, 1958, the street surfaces were wet and slippery from rain which continued in a mist.Immediately prior to the collision the Davis car was proceeding in a westerly direction on Herndon, the taxi south on Creswell.The accident occurred slightly west of the center of the intersection.

The intersection with Herndon Avenue may properly be designated a blind corner, particularly as to westbound traffic on Herndon and southbound traffic on Creswell, because of a cinder-block retaining wall 2.8 feet in height erected on the property line at the northeast corner of the intersection.Obscurity to one's view is further increased by the ground elevation of one foot above the height of the retaining wall and by the location of shrubbery and large trees.

The facts as to the occurrence of the accident may be briefly stated.The taxi struck the rear end of the Davis vehicle, skidding it to the southwest corner of the intersection, striking a pole, after which it continued several feet therefrom.The taxicab spun around, the left rear coming to rest against the west curb on Creswell immediately south of the intersection and headed in a northeasterly direction.

According to Johnny Wheeler, driver of the taxi, he was proceeding south on Creswell at approximately 30 miles per hour, following an Oldsmobile, when, on reaching the intersection with Herndon, the Oldsmobile proceeded across the intersection and immediately behind it appeared the Davis automobile crossing Creswell, the sudden approach of which afforded him neither time, distance, nor opportunity to do anything effectively to avoid or prevent the impending collision.He did endeavor, however, to avoid the collision by swerving to his left, but, nevertheless, struck the right rear of the Chevrolet automobile.

The testimony of plaintiff, Miss Davis, and Mrs. Shipp as to whether Miss Davis stopped and/or looked for approaching traffic is most confusing.While all three testified Miss Davis stopped before entering the intersection, it does not appear with any degree of certainty where she stopped, if she did, whether at the stop sign, where her vision was obscured as to traffic approaching from her right by the blind corner, or what her movements actually were thereafter.Additional uncertainty is shown by the fact that neither Mrs. Shipp nor plaintiff, particularly Mrs. Shipp, made further observation or was able to relate any other facts occurring immediately prior to the actual impact other than they, in their own minds, were positive Miss Davis stopped.Miss Davis' testimony adds little to clarify the confusion.True, she testified she stopped and looked, but this appears predicated largely on her custom of stopping and looking without any independent recollection as to this particular incident.Even though, if it be granted that she stopped and looked before entering the intersection, it could only be concluded that the performance of these duties was only perfunctory and she clearly failed to heed the approaching taxicab which she saw, or should have seen, and, by its near approach or entrance into the intersection, should have accorded the right of way.

According to the police officers who investigated the accident immediately after its occurrence, Miss Davis' car skidded 30 feet before the impact and travelled 20 feet thereafter to the southwest corner of the intersection, the left rear fender striking a telephone pole, causing the car to bounce off and continue 10 feet further westward.The taxi continued 38 feet beyond the point of impact and came to rest, as aforesaid, against the west curb of Creswell Street immediately south of the intersection.Moreover, one of the officers testified, from his report made at the time, that Miss Davis stated she stopped for the stop sign, after which she proceeded into the intersection without seeing the approaching taxi because of the retaining wall at the northeast corner of the intersection, blocking her vision.

By the jury's verdict and the judgment of the court, the taxi driver was exonerated from fault.The evidence, in our opinion, clearly supports that conclusion.It is not shown that he was exceeding the speed limit fixed by city ordinance at 35 miles per hour nor that his speed was unreasonable under the existing circumstances; nor does the evidence establish that he failed to keep or maintain a proper lookout or to make proper observation of traffic conditions as he approached this intersection.Moreover, he was proceeding on a right-of-way street.Had he observed the approach of Miss Davis' vehicle slowing down or stopping, as she testified she did, it would only have been reasonable for him to conclude that she did not intend to enter the intersection immediately in front of approaching traffic.

Where a motorist is proceeding on a right-of-way street protected by stop signs and has knowledge of and the location of such signs, he has the right to assume that any driver approaching the intersection from the less-favored street will observe the law and bring his vehicle to a stop before entering the intersection, and such assumption may be indulged in until he sees, or should see, that the motorist has not observed, or is not going to observe, the law.Henderson v. Central Mutual Insurance Company, 238 La. 250, 115 So.2d 339;Koob v. Cooperative Cab Co., 213 La. 903, 35 So.2d 849;Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292;Smith v. Hoye, La.App., 115 So.2d 651;Randall v. Baton Rouge Bus Co., Inc., La.App., 114 So.2d 98;Glen Falls Ins. Co. v. Copeland, La.App., 28 So.2d 145;Termini v. Aetna Life Ins. Co., La.App., 19 So.2d 286.

Nor are we able to find manifest error in the jury's verdict and the conclusion obviously reached by the court that plaintiff's host was solely at fault and that her negligence was the sole and proximate cause of the accident.From the...