Bryant v. Ouachita Coca-Cola Bottling Co.

• Decision Date: 26 November 1957
• Docket Number: No. 8705,COCA-COLA,8705
• Citation: 99 So.2d 152
• Parties: Mrs. Nora BRYANT, Plaintiff-Appellant, v. OUACHITABOTTLING COMPANY, Inc., et al., Defendants-Appellants, Allstate Insurance Company and Roy Simmons, Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 152

99 So.2d 152

Mrs. Nora BRYANT, Plaintiff-Appellant, v. OUACHITA COCA-COLA BOTTLING COMPANY, Inc., et al Defendants-Appellants Allstate Insurance Company and Roy Simmons, Defendants-Appellants.

No. 8705.

Court of Appeal of Louisiana, Second Circuit.

Nov. 26, 1957.

Rehearing Denied Dec. 19, 1957.

Writ of Certiorari Granted Feb. 10, 1958.

Dhu & Lea S. Thompson, Monroe, for Mrs. Nora Bryant.

Theus, Grisham, Davis & Leigh, Monroe, for Ouachita Coca-Cola Bottling Co., Inc. and others.

Thomas D. Davenport and Carl F. Walker, Monroe, for Allstate Insurance Co. and Roy Simmons.

GLADNEY, Judge.

This is an action in tort by Mrs. Nora Bryant, a widow eighty years of age, to recover damages occasioned by personal injuries received while a passenger in the automobile being driven by her daughter, Mrs. Ila Bailey Simmons, which vehicle was involved in a collision with the truck owned by the Ouachita Coca-Cola Bottling Company, Inc. and being driven at the time of the accident by Jerry A. Adams. The collision between the two vehicles occurred at the intersection of Louisville Avenue and Walnut Street in the City of Monroe, Louisiana, at about 7:00 o'clock A.M. on August 13, 1956. Made parties defendant are Roy Simmons and his liability insurer, Allstate Insurance Company, and Ouachita Coca-Cola Bottling Company, Inc. and its insurer, American Employers Insurance Company. (Through error The Employers Liability Assurance Corporation was originally named a defendant but by a joint motion of counsel for plaintiff and Ouachita Coca-Cola Bottling Company, Inc., American Employers Insurance Company was substituted in lieu of The Employers Liability Assurance Corporation, Ltd.)

The petitioner, Mrs. Nora Bryant pleaded she was entitled to invoke the rule of res ipsa loquitur and then pleading alternatively, alleged the negligence of the drivers of both vehicles in not exercising proper care, control and lookout before entering the intersection and charges each with having proceeded therein upon an unfavorable light. The defendants, Roy Simmons and Allstate Insurance Company filed a joint answer in which they adopted Mrs. Bryant's charges of negligence directed against the driver of the truck, and alleged that Mrs. Simmons entered the intersection upon a favorable light and had proceeded past the center of the intersection when her vehicle was struck by the truck which drove into the intersection upon a red light, at an unlawful rate of speed. They aver there was no negligence on the part of Mrs. Simmons. The remaining defendants, Ouachita Coca-Cola Bottling Company, Inc. and American Employers Insurance Company, alleged Adams was free of any act of negligence and charged the sole and proximate cause of the accident was the negligence of Mrs. Simmons in entering the intersection upon a red light and not being properly observant of traffic moving through the intersection with a favored light.

Upon the issues so presented the case went to trial after which the district court in a careful and thorough opinion decided the drivers of both vehicles were negligent and rendered judgment in solido against all defendants in the sum of $3,815. From the judgment all defendants have appealed. The plaintiff has answered the appeals and asked that the award be increased to $5,000.

The facts relating to the accident have been fully and accurately set out in the opinion of our brother of the district court and we adopt his statement thereof with a minor correction and one unimportant deletion. In the written opinion reference is had to the testimony of Jack Davis, traffic manager of the police department of the City of Monroe, and therein he is quoted as stating the semaphore light at the subject intersection showed a thirty-three second green signal on Louisville. We find from our examination of the record the words 'thirty-three second' should read 'thirty-six second'. From the written opinion, we quote:

'On the morning of August 13, 1956, at approximately 7:00 A.M. the plaintiff and a party of her friends and relatives had planned an all-day fishing excursion on a lake east of Monroe. The party was traveling in three automobiles. Two men in the first automobile had gone to the lake earlier and are not witnesses to the accident. The second car, the car in which the plaintiff was riding, was being driven by Mrs. Ila Bailey Simmons. In the front seat with Mrs. Simmons was plaintiff, Mrs. Nora Bryant. Immediately behind the driver was Mrs. Cora Simmons. On the back seat sitting in the middle was Gloria Simmons, a child seven years of age and to her right on the back seat was her sister, Lillie Faye Simmons, age six, the two children being the daughters of Mrs. Ila Bailey Simmons and Charles Roy Simmons. The third car was being driven by Mrs. Beatrice Wilson. In the front seat with the driver was Mr. Paton M. Ray. On the left side of the back seat behind the driver was Mrs. Mary Ray, wife of Paton M. Ray. To her right on the back seat was a little girl who was caring for Mrs. Wilson's baby. All the parties lived in West Monroe. Mrs. Wilson's automobile left the home and proceeded first to the ice plant in West Monroe. While, Mrs. Wilson's car was at the ice plant, the car driven by Mrs. Ila Bailey Simmons passed her and crossed the bridge into Monroe. As Mrs. Simmons arrived at the eastern end of the bridge, she was in the south lane of traffic. About the middle of the block, between Riverside and Walnut Streets, she stopped at the curb and waited for the Wilson car to come across the bridge. When the Wilson car arrived at the point where Mrs. Simmons was parked, Mrs. Wilson blew her horn and Mrs. Simmons pulled into the north lane of the eastbound traffic. As she pulled into the north lane, a Ford automobile came into the lane of traffic behind the Simmons car and in front of the Wilson car. The Simmons car proceeded east toward the intersection of Walnut Street and Louisville Avenue with the Ford car behind her and behind that car, Mrs. Wilson's car. As Mrs. Wilson's car proceeded easterly behind the car in front, two automobiles, first a jeep being driven by W. L. Brooks, and then a Chevrolet being driven by Dale Meachum, passed her in the south lane of the eastbound traffic, traveling toward the intersection. At approximately the same time, the Coca-Cola truck, being driven by Jerry A. Adams, with two colored helpers, Arthur Wilson, sitting in the middle and Calvin McGraw, Jr., sitting on the right or outside in the cab with him, was proceeding north on Walnut Street toward the intersection at about ten or fifteen miles per hour. When the accident happened, the Plymouth automobile, being driven by Mrs. Ila Bailey Simmons, had proceeded into the intersection and was on the east side when her car was struck just behind the front door by the Coca-Cola truck.

'The witnesses are all in accord in stating that the truck was in its right lane of traffic and the Plymouth automobile was immediately east of the traffic light, at the time of the impact. The witnesses are all hopelessly at odds as to the color of the traffic light on Louisville and on Walnut Street at the time of the accident.

'Mrs. Ila Bailey Simmons stated that as she approached the traffic light, going east on Louisville Avenue, that the light was red and that she stopped and waited for it to change; that it changed from red to caution and from caution to green and that after it had changed to green she proceeded slowly into the intersection. She further stated that she was watching the light at all times and was not looking to the right or left for traffic on Walnut Street.

'Mrs. Cora Simmons who was in the car with Mrs. Ila Simmons, stated that she was sitting on the edge of the back seat behind the driver, leaning forward toward the driver; that she saw the Coca-Cola truck coming into the intersection but thought it was going to stop. She corroborated Mrs. Ila Simmons as to the condition of the light and further stated that after the light changed to green that she urged Mrs. Ila Simmons to go on. Further in her testimony she stated that as they approached the traffic light that there was an automobile in front of them which entered into the intersection immediately before it turned red for Mrs. Ila Simmons; that the car in front got by the light but that Mrs. Ila Simmons was caught and had to stop.

'The testimony of the plaintiff, Mrs. Nora Bryant, as to the condition of the traffic light was substantially that of Mrs. Ila Simmons. Mrs. Ila Simmons' testimony as to the condition of the light was also corroborated by the child, Gloria Simmons. At the time of the trial of this case, the other child, Lillie Faye Simmons, was ill and unable to testify.

'Mrs. Beatrice Wilson stated that Mrs. Ila Simmons, the Ford car in front of Mrs. Wilson, and Mrs. Wilson all stopped for the red traffic light; that when the light turned green for traffic on Louisville, she saw Mrs. Ila Simmons proceed into the intersection and that the car in front of her did not move and she blew her horn for the driver to start up. At about the same time she saw the Coca-Cola truck moving north on Walnut Street and said to the others: 'Oh, my God! the truck's gonna hit them people.'

'Beatrice Wilson's testimony as to the condition of the traffic light was corroborated by that of Mr. Paton M. Ray and Mrs. Mary Ray, who were riding in the car with her.

'Mrs. Evelyn Traweek stated that she lived in West Monroe at the time of the accident and that earlier in the morning she and her child had taken her husband to work in Monroe; that they were returning home and proceeding west on Louisville Avenue in the north lane of traffic; that at the time of the accident she was between North Second and North Third Streets; that the traffic light at North Second Street was green and that she continued to proceed west through the intersection of Walnut Street and Louisville Avenue, the north lane...