Brown v. S. A. Bourg & Sons, Inc.

• Decision Date: 21 March 1960
• Docket Number: No. 43979,43979
• Citation: 118 So.2d 891,239 La. 473
• Court: Louisiana Supreme Court
• Parties: Ella BROWN v. S. A. BOURG & SONS, INC., et al.

Page 891

118 So.2d 891

239 La. 473

Ella BROWN v. S. A. BOURG & SONS, INC., et al.

No. 43979.

Supreme Court of Louisiana.

March 21, 1960.

Blanchard & Blanchard, Farrell A. Blanchard, Donaldsonville, for plaintiff-relator.

Voorhies, Labbe , Voorhies, Fontenot & Leonard, Lafayette, for defendants-respondents.

VIOSCA, Justice.

Plaintiff, as the surviving widow of Melvin Brown, brought suit to recover damages for the death of her husband which occurred when a taxicab in which he was riding as a passenger crashed into the rear of a truck and trailer on the Morgan City Bridge spanning the Atchafalaya River during the early hours of October 16, 1955. Plaintiff sought a solidary judgment against S. A. Bourg & Sons, Inc., hereinafter called Bourg, owner of the truck, Edward Adams, the driver thereof, the B. & H. Cab Company, a commercial partnership owner of the taxicab, and the individual members of this partnership, Raymond Clark and Allen Darnell, alleging that they were joint tort-feasors and that their negligence, or negligence imputable to them, caused the death of her husband. After trial in the district court there was judgment in favor of the plaintiff and against the B. and H. Cab Co., and its members, Clark and Darnell, in the amount of $12,800 with legal interest from judicial demand. No appeal was taken by these defendants. The district court dismissed the suit as to Bourg and its driver Adams. On appeal by plaintiff to the Court of Appeal from the judgment of the district court insofar as it dismissed the suit against Bourg and its driver Adams, that court affirmed the judgment ¹ and plaintiff applied for and was granted a writ of certiorari to this Court.

It is the contention of plaintiff that the district court and the Court of Appeal committed error in failing to find negligence on the part of the driver of Bourg's truck and in failing to grant a solidary judgment in favor of plaintiff against the owner and driver of the truck as joint tort-feasors with the owners of the cab. The negligence of the driver of the cab is no longer an issue as no appeal was taken from the district court judgment by the cab company and its members, and they have not filed any answer to plaintiff's appeal. The only issue presented is whether the defendants, Bourg and its driver Adams, were guilty of any negligence at all which had causal connection with the accident.

The specific acts of negligence alleged by plaintiff against Bourg and Adams are that the driver of the truck failed to have the truck properly lighted as provided by the mandatory provisions of LSA-R.S. 32:280, and failed to give warning that the truck was about to stop on the bridge.

The accident herein occurred before the daylight hours (between 3:00 A.M. and 3:25 A.M.) of October 16, 1955, on the Morgan City Bridge, a two lane bridge which spans the Atchafalaya River on Highway 90. The truck and taxicab were traveling east, crossing the bridge from Berwick to Morgan City when the taxicab ran into the rear of the truck on the descending portion of the bridge. The truck, a Ford Tandem Low-boy, was carrying a load of line pipes which extended a foot to a foot and a half beyond the rear of the trailer truck. Although the truck had the usual taillights and three small red lights in the middle of the rear of the truck, ² there was no light on the pipes which extended over the rear. The truck driven by Adams was approaching a truck, also owned by Bourg, coming from the opposite direction. Adams was in the process of flagging down the approaching truck in order to transfer a rider from the Adams truck to the approaching truck. There is much dispute (as reflected in the opinions of the district court and the Court of Appeal) as to whether the truck driven by Adams had actually come to a stop on the bridge before being struck by the cab, or whether it was in the process of slowing down when it was struck.

Of importance to the question of negligence on the part of Bourg and its driver Adams is the following provision of LSA-R.S. 32:280:

'When any part of the load, coupling, or other object on a vehicle shall extend beyond the rear bed of the vehicle body, there shall be displayed at the end of such load, coupling, or object in such a way as to be clearly visible at all times from the rear a red flag, at least twelve inches both in length and width. Between one half hour after sunset and one half hour before sunrise, This signal shall be a red light, plainly visible under normal atmospheric conditions for at least five hundred feet from the rear.' (Italics ours.)

Although defendants contend the truck was properly lighted, it is admitted that no red light was attached to the portion of pipe extending beyond the rear of the truck. The statute is specific that not only must the red light be so attached but it must be 'plainly visible under normal atmospheric conditions for at least five hundred feet from the rear.' These conditions were not met in the present case. Failure to comply with the mandatory provisions of a traffic law enacted in the interest of safety is negligence per se, and it is actionable negligence if it has causal connection with the accident. ³

In Holloway v. Pure Oil Co., 17 La.App. 584, 135 So. 381, 383, it was held that the failure to provide an effective signal as required by statute makes the owner of the truck guilty of 'gross and inexcusable negligence'. This case interpreted the provisions of Subsection b of Section 44 of Act No. 296 of 1928 which has been incorporated into the Revised Statutes under Title 32 as Section 277. Section 277, relative to a signal on towing vehicles, is identical in scope with Section 280. Both of these sections provide that the signal of a red light must be plainly visible under ordinary atmospheric conditions for a distance of at least 500 feet.

Adams was bringing his truck to a sudden and unexpected stop on a bridge at a point where traffic approaching from the rear would not ordinarily expect one to slow down or stop. Although he was in the act of flagging down the truck approaching from the front with a hand signal, he admits that he did not give any signal to traffic in the rear by the use of his rear signal lights although his truck was equipped with such signal lights. These lights would have been more visible at night than the waving of his hand. The extending pipes on which there was no light came in contact with the head of the deceased. ⁴ Under these circumstances we conclude that Adams and Bourg were negligent and that their negligence had a causal connection with the accident, and, accordingly that Bourg and Adams should be held solidarily liable with the other defendants.

Ordinarily we remand cases for the assessment of damages, but because of the way in which the trial judge has computed them in this case, and so that there will be no misunderstanding as to how they should be computed, we will fix the amount ourselves.

In reaching his conclusion that the damages suffered by plaintiff amount to $12,800, the district judge in his opinion said:

'The plaintiff widow itemizes the $45,650.00 she claims as being $35,000.00 for loss of the earning capacity of her husband, $10,000.00 for the loss of his love, affection and companionship; and $850.00 as the expense of his funeral and its incidentals. She makes no claim on behalf of their five children.

'As surviving widow she is not entitled to all of the earnings of her husband during the period of his life expectancy. She is only entitled to recover for the support she could reasonably expect to have received from him had he lived. During the several months before his death, it is unlikely that the decedent provided his wife and children with all the support they required. He was employed as a fisherman on a pogy boat that was fishing in Louisiana waters. He was seldom home. He sent money to his family irregularly and the amounts varied. These amounts evidently were...