Broussard v. Krause & Managan, Inc.

• Decision Date: 15 February 1939
• Docket Number: 1920
• Citation: 186 So. 384
• Parties: BROUSSARD v. KRAUSE & MANAGAN, Inc., et al.
• Court: Court of Appeal of Louisiana — District of US

186 So. 384

BROUSSARD v. KRAUSE & MANAGAN, Inc., et al.

No. 1920

Court of Appeal of Louisiana, First Circuit.

February 15, 1939

Appeal from Sixteenth Judicial District Court, Parish of Iberia James D. Simon, Judge.

Action by Didier Broussard against Krause & Managan, Incorporated and others, for personal injuries sustained by the plaintiff in an accident which occurred when his automobile collided with one or more parked trucks on a gravel road. From a judgment for the defendants, the plaintiff appeals.

Affirmed.

Otto J. Mestayer, of New Iberia, for appellant.

Pujo Hardin & Porter, of Lake Charles, and C. Arthur Provost, of New Iberia, for appellees.

Le BLANC, Judge.

This is a suit for damages for personal injuries sustained by the plaintiff in an accident which occurred at about 8 o'clock on the night of May 26, 1936, when his car, which he was driving, collided with one or more parked trucks on a gravel road running between New Iberia and Loreauville, in the Parish of Iberia. The demand which is made against three defendants, in solido, is for the sum of $4007, including an item of $144 for repair of his car which plaintiff claims was damaged to that extent.

The defendants are Krause and Managan, Inc., John W. Clarke and A.J. Moody, Jr. Krause and Managan, Inc., had contracted to sell and deliver a lot of lumber to the Texas Company at the Little Bayou Oil Field in Iberia Parish and then agreed with John W. Clarke to fill the contract for them. Clarke in turn entered into an agreement with A.J. Moody, Jr., to haul and deliver some of the lumber, both of these parties using trucks to make delivery.

The road leading to the oil field is a dirt road running east from the New Iberia-Loreauville gravel road which runs north and south. On the night of the accident plaintiff was driving south on the gravel road and on approaching the point where the dirt road intersects it, he alleges in his petition that the headlights of one of the trucks belonging to one of the defendants, which was parked on the east side of the gravel road interfered with his seeing another of the trucks which was diagonally across the road, without any lights burning and despite all diligence on his part he was unable to stop his car before running into the trailer of this latter truck. He charges negligence against all three defendants in the following particulars: (1) In parking a truck on the right hand side of the road, with glaring headlights which blinded him; (2) in hauling trucks and trailers across a highway in disregard of approaching traffic, and (3) in failing to have lights burning on the trailer with which he collided.

Various exceptions were filed by all three defendants, all of which were overruled, whereupon they each filed a separate answer.

Krause and Managan, Inc., denied liability primarily on the ground that they had sub-contracted the order for lumber to John W. Clarke who was to furnish and deliver the same to the purchaser, the Texas Company and that it had no connection with nor any control or supervision over any of the trucks used in its delivery which were involved in the accident.

The defendant Clarke in turn set out that he had contracted with the defendant Moody to assist in the hauling and delivery of the lumber and that Moody furnished his own trucks for that purpose and operated them under his own supervision and direction and without any control or suggestion from him. He admits that he used one of his own trucks in hauling the lumber, but avers that the same was not involved in the accident in which plaintiff was injured.

Defendant Moody, in effect, admitted that the conditions relating to the delivery of the lumber were as set out by the two other defendants, but like them, he denies that the accident occurred because of any negligence on the part of any of them.

In the alternative all three defendants plead contributory negligence on the part of the plaintiff in (1), driving in a reckless and dangerous manner at a speed of 40 miles per hour which was entirely unsafe in view of the conditions existing on the highway at the time of the accident and of his own admission that he was blinded by the headlights of one of the trucks as he approached it; (2) in driving his own car with headlights which were dim and afforded him visibility for only 20 or 30 feet, and (3) in failing to stop or bring his car under proper control when blinded by the headlights of one of the trucks in order to meet the emergency which he contends had been created through the negligence of the defendants.

On the issues as thus presented to him, the district judge rendered judgment in favor of the defendants dismissing the plaintiff's suit on the ground that he was guilty of contributory negligence and the latter has appealed.

The exception of no right and no cause of action is again urged before this Court by all three defendants who contend that under plaintiff's own allegations to the effect that he continued to drive his car at a speed of 25 miles per hour even after he had become blinded by the glaring headlights of one of the trucks, he was negligent as a matter of law, because, it is urged, under certain decisions of the Courts in this State it has been held that the driver of an automobile has no right to assume that the road before him is clear and if, when driving at night he becomes blinded by the lights of a car approaching from the opposite direction, he must keep his car under such control as to be able to stop it instantly or immediately. In one of the cases decided by the Supreme Court of this State which is cited by the defendants in support of their exception, Woodley & Collins v. Schusters' Wholesale Produce Company, 170 La. 527, 128 So. 469, 470, the Court merely stated it as a general rule that the driver of an automobile under the circumstances stated is guilty of negligence, and it is rather significant to note that in the sentence preceding that statement, the Court said, " Whether it should be deemed negligence for the driver of an automobile to fail to slow down, in a case like this, depends so much upon the circumstances of the particular case that it is not easy nor safe to lay down a hard and fast rule on the subject." (Italics ours.) In the case of Kirk v. United Gas Public Service Company, 185 La. 580, 170 So. 1, the Supreme Court quoted with apparent approval the following ruling from Blashfield Cyclopedia of Automobile Law and Practice, Permanent Edition, Vol. 5, page 455, Section 3320: " In the absence of notice to the contrary, there are certain assumptions which may be indulged by a motorist as to the condition of public streets and highways, whether he be traveling by day or by night. Among these are: (a) that the way is reasonably safe for travel and free from defects and unlawful obstructions." The Court then goes on to state that the rule as stated prevails in this State as laid down as follows in Jacobs v. Jacobs, 141 La. 272, 74 So. 992, 997, L.R.A.1917F, 253:" The rule is well established in the jurisprudence of this state that a person using a public highway *** has a right to presume and act upon the presumption, that the way is safe for ordinary travel, even at night."

Whilst it is true that in some cases cited by defendants the Courts have dismissed an action of this nature on an exception of no cause of action, it appears in everyone, that the allegations of the petition affirmatively showed that the plaintiff's own negligence was the proximate cause of the accident. Typical of that class of cases is a decision of this Court, Inman v. Silver Fleet of Memphis et al., 175 So. 436.The allegations made by the plaintiff in that case are quoted a bit extensively in the opinion and the petition, as a whole, showed a case of gross negligence on the part of the plaintiff. This negligence, as was held, was the proximate cause of the accident. On its face the petition in the present case does not show such negligence and in view of the statement which we have quoted from the decision of the Supreme Court in the case of Woodley & Collins v. Schusters' Wholesale Produce Company, supra, and the rule as announced in Jacobs v. Jacobs, supra, and reaffirmed in Kirk v. United Gas Service Company, supra, we conclude that the lower court correctly overruled the exception of no cause of action and heard the case on the merits.

The testimony reveals that in April or May 1936, Krause and Managan, Inc., had contracted to sell to the Texas Company a bill of lumber. The lumber was to be delivered to the...