Champagne v. Southern Farm Bureau Cas. Ins. Co.

• Decision Date: 07 December 1964
• Docket Number: No. 1626,1626
• Citation: 170 So.2d 226
• Parties: Allen J. CHAMPAGNE v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 226

170 So.2d 226

Allen J. CHAMPAGNE v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY et al.

No. 1626.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 7, 1964.

Rehearing Denied Jan. 11, 1965.

Writ Refused Feb. 26, 1965.

James P. Vial and Leon C. Vial, III, Hahnville, for plaintiff-appellee.

Porteous & Johnson, John J. Hainkel, Jr., New Orleans, for defendants-appellants.

Before McBRIDE, SAMUEL and HALL, JJ.

McBRIDE, Judge.

On the morning of January 16, 1962, in the Parish of Jefferson, an automobile owned and driven by Clifford J. Robert traveling on La. Highway 18 (west side River Road) towards New Orleans crashed into the rear of an automotive truck owned by the partnership composed of Joseph and Dominic Giardina (farmers). The truck was in a stationary position in the downstream lane in which the Robert car was being driven. The truck did not obstruct any portion of the adjoining upstream lane.

Three law suits grew out of the collision, all of which were consolidated for trial in the court below, a separate judgment being rendered in each; on appeal the three matters were consolidated for argument before us.

The instant suit was brought by Allen J. Champagne, a passenger in the Robert vehicle who sat on the rear seat thereof at the time of the collision. Said plaintiff sues both Giardinas, their liability insurer, Southern Farm Bureau Casualty Insurance Company, Robert, and his insurer, American Automobile Insurance Company, all in solido for $48,955.16 for personal injuries, medical expenses, loss of wages, future pain and suffering, and embarrassment and discomfort resulting from the loss of teeth and disfigurement. It is alleged that Joseph Giardina, who had been driving the truck, was negligent in parking it on the highway, in failing to have lights on the truck, in failing to have set out flares, and in failing to give warning that the truck was out of commission. It is alleged that Robert was negligent in failing to keep his vehicle under proper control, in failing to maintain a proper lookout, in failing to see what was there and should have been seen, in failing to avoid running into the rear of the truck, in traveling at a rate of speed in excess of that permitted by law.

The Giardina brothers and Southern Farm Bureau Casualty Insurance Company answered denying negligence on the part of Joseph Giardina; the answer avers that the collision resulted solely from the negligence of Clifford J. Robert and alternatively that Champagne, the plaintiff, was guilty of contributory negligence in failing to warn Robert of the presence of the truck on the highway, in trusting his safety to Robert regardless of the imminence of danger, failure to exercise his sense of sight, hearing and perception to protect himself and failure to act as a reasonable and prudent person.

Robert and his insurer answered plaintiff's suit denying negligence attributable to Robert and averring the collision was caused solely through the negligence of Joseph Giardina; alternatively said defendants alleged that plaintiff was guilty of negligence that proximately contributed to the accident in the following respects: in engaging on a joint venture with Robert, and thereby failing to look out for his own safety and well-being, in failing to warn Robert of any dangers in the roadway, in failing to object to the manner Robert operated his vehicle, in permitting Robert to operate the vehicle in the manner in which it was operated .

Certain reciprocal third-party demands were made by the defendants, but they need not be further alluded to.

After a trial on the merits below, there was judgment in favor of plaintiff against Joseph Giardina, Dominic Giardina, Southern Farm Bureau Casualty Insurance Company (to its policy limits), Clifford J . Robert, and American Automobile Insurance Company (to the extent of its policy limit and subject to a credit of $500.00 paid under the medical provisions of its policy), jointly, severally and in solido, for $714.85 for medical expenses, $440.31 for loss of wages, and $3,500.00 for personal injuries; the third-party demands of Robert and American Automobile Insurance Company were dismissed. All defendants (except Robert) have appealed. Each appellant seeks a reversal of the judgment insofar as it casts the appellant for damages. Plaintiff has answered the appeals praying that the award for personal injuries be increased.

The Giardina farm fronts on La. Highway 18. On the morning in question Joseph Giardina drove the truck from the premises with its lights illuminated (including taillights and clearance lights) onto the highway and then made a right turn so as to head in the direction of New Orleans. The crash occurred not less than two nor more than four minutes after the truck had left the Giardina premises.

Giardina testified that he had only traveled about 50 feet on the highway when for some reason or other the truck, because of mechanical difficulties, stalled on the road. It stood squarely in the paved downstream lane. Giardina says he remained in the truck some 3 or 4 minutes, exerting unsuccessful attempts to start it. He claims hd did not turn off his lights. He then alighted on the right side and stood beside the vehicle with the right door open in order to get some flares he says were in the truck. At one point in his testimony he stated he did not leave the truck. Under cross-examination, he testified he observed the Robert car with its lights illuminated approaching about 100 feet away, so he ran into his yard by another driveway for 25 feet. At other times in his testimony, the distance he had gone into the yard varies. He said he saw the cars when they crashed but later on his statement is that he did not witness the impact. He claims he intended to put a warning reflector on the road to protect oncoming traffic but did not have enough time.

Giardina, though denying it was dark, insisted the truck's lights were turned on. This bit of his testimony is interesting:

'Q. You say that was a clear, bright morning?

'A. Very clear and very bright.

'Q. What did you need your lights on for?

'A. I don't know.'

Contrary to Joseph Giardina's statements, the accident occurred in the darkness of early morning, and there were no lights on the truck .

In that connection, the trial court stated:

'The testimony of Lawrence O. Pierce, Wiltz Champagne, John Ayo, Ernest Ayo, James J. Champagne, Hilton Petit, and Allen Champagne is accepted by this Court as the true and correct factual version of the accident.'

Pierce testified he was driving with his headlights on because it was 'dusty dawn, patchy fog' and visibility was nil without lights. He passed the stalled truck between 6:20 and 6:25 a.m. and saw no lights on it.

Wiltz Champagne passed the truck between 6:15 and 6:18 a.m. while driving alone from his home at Ama to Avondale. He recognized the Giardinas' stalled vehicle. He said darkness prevailed and there were patches of fog. The truck was unlighted.

Ernest Ayo was driving his son John to work and came upon the truck after the accident. John Ayo stated Giardina told him that the accident happened whilst he was walking along the road to get his brother to help move the truck off the roadway. Ernest Ayo, after stopping briefly at the scene of the accident, drove his son to his place of employment and then returned; he states Joseph Guardina and a young boy were then placing flares about the truck.

James Champagne and his passenger Hilton Petit passed the truck about 6:30 a.m. subsequent to the accident. They say it was then between dark and daybreak.

Allen Champagne, plaintiff, testified the accident happened about 6:25 or 6:30 in the dark and hazy morning before sunup.

The version of the Louisiana Highway Regulatory Act prevailing at the time of the accident in R.S. 32:241A, now repealed*, provided that in to event shall any person park a vehicle, attended or unattended, upon a highway, between one-half hour after sunset or one-half hour before sunrise, without displaying appropriate signal lights thereon sufficient to warn approaching traffic of its presence.

R.S. 32:441, before repeal by Act No. 310 of 1962**, provided that motor trucks operating on the highway between one-half hour after sunset and one-half hour before sunrise shall be equipped with at least three portable flares, reflectors, or other similar devices, which may be plainly visible for a distance of 500 feet; the operator of such a vehicle is required immediately upon bringing his vehicle to a stop at any time during this period to place such warning devices in specified locations about the truck and to maintain them in position during the time the vehicle remains parked .

The purpose of said provisions of the Highway Regulatory Act was to protect life and property on the highways, and it was a safety measure. The violation thereof is negligence per se, and if such is a legal cause of an accident this negligence is actionable.

R.S. 32:241B (now repealed)*** contained the provision that the above mentioned requirement of R.S. 32:241A**** shall not apply to the driver of any vehicle which is disabled so that it is impossible to avoid stopping and temporarily leaving the vehicle in that position. However, paragraph B also provided the driver shall remove the vehicle as soon as possible, and until it is removed it is his responsibility to protect traffic.

It is true the truck became disabled because of mechanical difficulties and through no fault of Joseph Giardina. However, from the evidence of disinterested witnesses, the vehicle was allowed to remain on the highway from at least 6:15 a.m. to the happening of the accident between 6:25 a.m. and 6:30 a.m.; in other words not less than 10 minutes elapsed between the breakdown and the accident. Joseph Giardina claims he had not sufficient time to set out warning signals on or about the truck to protect the public. We think that he did. He did not...