Carlisle v. Parish of East Baton Rouge

• Decision Date: 30 June 1959
• Docket Number: No. 4859,4859
• Citation: 114 So.2d 62
• Parties: James V. CARLISLE, Individually, etc., Plaintiff-Appellant, v. PARISH OF EAST BATON ROUGE, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 62

114 So.2d 62

James V. CARLISLE, Individually, etc., Plaintiff-Appellant, v. PARISH OF EAST BATON ROUGE, Defendant-Appellee.

No. 4859.

Court of Appeal of Louisiana, First Circuit.

June 30, 1959.

Rehearing Denied Aug. 31, 1959.

Hynes Mathews & Lane, Baton Rouge, for appellant.

R. Gordon Kean, Jr., City Atty., John V. Parker, Asst. City Atty., Baton Rouge, for appellee.

Before ELLIS, LOTTINGER, and TATE, JJ.

TATE, Judge.

Plaintiff's minor daughter, while operating his car on March 10, 1957, ran off a municipal street maintained by the defendant parish. This suit was filed by him individually to recover for vehicle damage and medical expenses, and also on behalf of his daughter to recover for her personal injuries. He bases his cause of action upon allegations of a negligent failure of the defendant to place barriers or warning devices to protect the traveling public against a street hazard created by it and existing at the time and place of the accident, which negligence is alleged to have caused the accident and the resulting injuries.

Plaintiff appeals from the dismissal after trial of his suit.

The two principal issues of this appeal concern (a) whether any negligence on the part of the defendant parish was the sole proximate cause of the accident which resulted in the damages for which recovery is sought herein; and (b), if so, whether the defendant parish can be held liable for any negligence in the performance of this governmental function.

The District Court found it unnecessary to pass upon the defendant's alleged immunity from liability, since it dismissed plaintiff's suit on the grounds (we are informed, oral reasons only being rendered) that the situation was not sufficiently hazardous to necessitate warning signs, and that the lack of warning signs did not cause or contribute to the accident since the plaintiff's driver had already negotiated the turn when she lost control of her car (which lack of control was felt to be a proximate cause of said accident.)

The accident occurred on West Roosevelt Street. For convenience in discussion, the site of the accident is diagrammed below:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

West Roosevelt Street is a small crosstown street running east and west within the city limits of Baton Rouge. The whole street was formerly blacktopped and measured 18 feet in width. It was bordered on its south by a fairly deep drainage ditch.

In the spring of 1957 several blocks of the western portion of the street were newly paved and the width thereof enlarged to 22 feet. The 'new section' (see diagram above) stopped abruptly in the middle of a block, forming a 4-foot set-off or jag where it joined the 'old section.' The drainage ditch bordering the old section was immediately in front of (facing east) the extra four-feet width of the new pavement.

Along the edge of the old road eastward of the jag there were rain-pit holes in the black top, about six inches in diameter and from 2--5 inches apart, deep enough (according to the investigating police officer) to 'jerk a wheel if the wheel gets off into one.'

At the time of the accident there were no warning signs or barriers to alert motorists to the offset and the ditch immediately in front of it, and there were no street lights near the site.

The facts of the accident itself are undisputed.

At about 7:30 p.m. on the night of the accident the 16-year-old daughter of the defendant, Jacqueline Carlisle, was driving eastward from Nicholson Drive to Highland Road by way of West Roosevelt Street.

Proceeding eastward on the new pavement at about 25 mph, she suddenly came upon the set-off or jag where the new pavement met the old narrow street with the ditch immediately in front of her. She testified she was 'approximately a car length, the length and a half of a car' when she saw the danger. She made a precipitous left turn, immediately placing her foot on the brake 'for assurance'. As she made this swift turn into the narrower old portion of the road, she felt her wheels hit some bump or hole which swerved her car into the ditch on her right about a car's length beyond the jag or offset.

Her testimony was substantiated to a great extent by the investigating police officer, who found her car in the ditch on the right about a car's length beyond (east-ward of) the offset and was of the opinion that 'these rain-beat holes or edges on the blacktop of the old section * * * had jerked the wheel and sent the car into the ditch.'

1. Negligence and Contributory Negligence.

We respectfully differ with our learned and conscientious trial brother in his holding that the situation created by the defendant parish at the junction of the new and old streets was not sufficiently hazardous to warrant the erection of a barrier or warning sign.

A municipal government must keep its streets and sidewalks reasonably safe, but 'to render it liable in damages the defect complained of must be dangerous or calculated to cause injury'; those defects 'that are not in the nature of traps, or from which danger cannot reasonably be anticipated, provide no actionable negligence,' White v. City of Alexandria, 216 La. 308, 43 So.2d 618, 620.

As we stated recently in Lejeune v. State Farm Mut. Auto. Ins. Co., La.App., 107 So.2d 509, summarizing the duty of municipal governments, 107 So.2d 523:

'* * * there is no absolute liability upon municipalities for injuries occurring on its streets. The municipality is not an insurer. In order for any duty to post warning signs or barriers to exist, there must be an unusual and inherently dangerous situation in such proximity to the highway as to make travel upon it unsafe for travelers using the streets for the purpose for which they were constructed and exercising due regard for their own safety.'

In the Lejeune case, the Parish of East Baton Rouge was impleaded as a party defendant on the ground that the accident was caused partly by its negligence in failing to maintain warning signs in connection with a narrowing of a streetway. This court absolved the parish of negligence under the circumstances of that case. The older portion of the street in that case was two feet narrower than the new portion, but 'to prevent a sharp offset' the new part was 'gradually tapered * * * into the old.' 107 So.2d 513.

The situation therein is greatly to be distinguished from the present. The abrupt offset herein constituted in effect a sudden ending of a substantial portion of the traffic lane and was of such a nature as to require barricade or warning device, since motorists are not required to anticipate that the roadway in which they are traveling will suddenly without warning run into an unmarked deep ditch. Smith v. State, through Department of Highways, La.App. 1 Cir., 87 So.2d 380; Dowden v. State, La.App. 2 Cir., 81 So.2d 48; Reevesv State, La.App. 2 Cir., 80 So.2d 206; cf., McCraine v. T. L. James and Company, La.App. 1 Cir., 95 So.2d 156.

That the abrupt ending of a portion of the traffic lane into a ditch was a hazard requiring warning device is to some extent evidenced herein by the prompt action of the investigating police officer in reporting the condition of the street as hazardous, as a result of which warning signals were placed to indicate to oncoming eastbound traffic the presence of the sudden jag in the street. It is further to be noted that to avoid such a hazardous situation the engineers in the Lejeune case had recommended and used a gradual taper.

The argument is made, however, that the lack of such warning devices did not constitute a proximate cause of the present accident because Miss Carlisle noticed the offset about a car length and a half in advance thereof and had successfully negotiated the turn and would have continued without incident if the wheels of her car had not caught in the jagged edges of the blacktopped highway immediately east of the offset. Of course, at her speed of 25 mph (36.5 feet per second), Miss Carlisle had swerved and was in the ditch within a second of the time that she noted the unmarked hazard.

The abrupt ending of her traffic lane into the ditch was not readily discernible in the dark or by the light of her headlights. The lack of adequate warning sign to alert her to the sudden jag in the highway caused her sudden swerve just before her traffic lane ended, because of which her tires caught the immediately adjacent ragged and holeeroded edge of the old blacktop so as to cause her to lose control of her car. Had she been alerted earlier to veer leftward by the required signals, she would not have passed across and been caught by the extreme southern hazardously-holed edge of the old streetway but would have negotiated her turn on the safer more centered portion of the blacktop. As a matter of fact, the dangerous nature of the adjacent road surface is a further strong reason why signs or barricades were needed to alert oncoming eastbound motorists of the danger created by the abrupt ending of the roadway.

Defendant's suggestion that Miss Carlisle was contributorily negligent in having failed to observe sooner the abrupt ending of the road is, we feel, without merit. In Smith v. State, through Department of Highways, 87 So.2d 380, at page 383, we stated that 'notorist has no legal duty to anticipate an unusual hazard where there is no adequate warning, but has the right to presume the highway is safe for usual and ordinary traffic, even at night.' Thus, although the driver of a vehicle at nighttime is required to maintain such control and lookout as to stop or avoid 'the ordinary hazards which may be expected on a road' when revealed by his headlights, contrariwise 'when the hazard is unusual in nature and not readily discernible, the drivers running into same have not been held guilty of contributory negligence.' 87 So.2d 384.

Likewise, we are not impressed with the defendant's contention that because she had driven on...