Cole v. Sherrill

• Decision Date: 02 February 1942
• Docket Number: 6381.
• Citation: Cole v. Sherrill, 7 So.2d 205 (La. App. 1942)
• Court: Court of Appeal of Louisiana
• Parties: COLE v. SHERRILL.

7 So.2d 205

COLE v. SHERRILL.

No. 6381.

Court of Appeals of Louisiana, Second Circuit

February 2, 1942

Rehearing Denied March 3, 1942.

Certiorari Denied March 30, 1942.

Whitmeyer & Richardson, of Shreveport, for appellant.

Booth & Lockard, of Shreveport, for appellee.

DREW, Judge.

The lower court has correctly set out the issues and determined the case in the following written opinion:

"This suit is a result of an intersection collision between automobiles operated by the plaintiff, Dr. B. J. Cole, and the defendant, Mr. B. A. Sherrill. The accident occurred on the morning of July 6, 1940, at the intersection of Robinson Place and Line Avenue, in the city of Shreveport.

"The intersection is quite irregular because of an offset in Robinson Place west of Line Avenue. To the east of Line Avenue, Robinson Place is an ordinary street 24 feet wide whereas, on the west side of Line Avenue it is a boulevard or two paved portions divided by a neutral ground. The boulevard is 60 feet in width. In other words, each lane is 20 feet in width and the neutral ground is also 20 feet wide. Because of the offset in Robinson Place going west it is necessary for cars traveling west on Robinson Place to travel in about a 45 degree angle and a distance of some 60 feet northwesterly on Line Avenue before reaching the western curb line of Line Avenue. To further explain this offset, if Robinson Place east of Line Avenue were projected due west it would only touch about six feet of the south portion of Robinson Place boulevard on the west; in other words, the south curb of Robinson Place east of Line Avenue is only about 18 feet south of the south curb of Robinson Place west of Line Avenue, whereas, the north curb of Robinson Place east of Line Avenue is about 54 feet south of the north curb of Robinson Place west of Line Avenue. There is a 6 1/2% grade up in approaching Line Avenue from the east on Robinson Place and also a 6% upgrade in approaching Robinson Place from the north on Line Avenue.

"The plaintiff was traveling south on Line Avenue and the defendant was driving in a northwesterly direction in Line Avenue in attempting to negotiate a crossing from Robinson Place east of Line Avenue to the boulevard on the west of Line Avenue at the time of the collision.

"Plaintiff alleges that he was driving at an approximate speed of 20 to 30 miles per hour and on his right side of Line Avenue, and that it was not until he had entered this intersection that he saw the defendant approaching from the left. That he immediately applied his brakes and the accident occurred at about the center of the intersection or slightly to the south of the center. Plaintiff charges Mr. Sherrill with five acts of negligence: (1) failing to observe the stop sign; (2) failing to keep a proper lookout; (3) failing to recognize plaintiff's right of way; (4) failing to observe the preemption of the intersection by the plaintiff; and (5) failing to avail himself of the last clear chance to avoid the accident.

"The defendant denied all the acts of negligence alleged by plaintiff and in his reconventional demand alleges that plaintiff was traveling at an excessive rate of speed and failing to keep his car under proper control. In addition to these charges, defendant also alleges plaintiff to have been guilty of substantially the same acts of negligence as alleged by plaintiff in his petition. In the alternative, the defendant pleads contributory negligence.

"We have concluded that this accident was due solely to the negligence of the defendant in failing to maintain a proper lookout and in failing to observe properly the stop sign in crossing Line Avenue under the conditions existing at this intersection. It is admitted that Line Avenue was a right of way street and that there was a stop sign and line across Robinson Place.

"Mr Sherrill testified that he was familiar with this intersection and had traveled in that area many times. This being true, he was undoubtedly aware of the danger in making the crossing that was necessary to reach Robinson Place on the west. In other words, it was necessary for defendant to travel in a northwesterly direction some 60 or more feet in Line Avenue.

"A number of witnesses testified as to the distance that cars could be observed approaching from the north on Line Avenue if one was parked at the yellow line on Robinson Place east of Line Avenue. This estimate varied from 178 to over 300 feet. The yellow line is slightly over 12 feet back of the east curb line of Line Avenue. Witnesses for both plaintiff and defendant testified that if a car was driven a few feet past the yellow line that the view was clear for over two blocks to the north.

"The rule in such cases is well stated in Blashfield's Cyclopedia of Automobile Law and Practice to be as follows: 'The proper place to stop in order to comply with the duty of stopping upon coming to an intersection with a right of way street or one where a stop sign is posted may be a question of fact. The standard approved by the courts is that a driver, thus under a duty to stop, should do so at a place where the view is sufficiently clear to permit observation of approaching traffic.' Blashfield's Cyclopedia of Automobile Law and Practice, Vol. 2, � 1035, page 220.

"We shall quote from the testimony of the defendant which, in our opinion, places the cause of this accident on his failure to keep a proper lookout, and also his failure to properly observe the stop sign in view of the unusual situation created by this intersection:

" 'Q. Are you familiar with Robinson Place? A. Yes.

" 'Q. You were proceeding west on Robinson Place? A. Yes.

" 'Q. Are you familiar with that street? A. Yes.

" 'Q. Are you familiar with that intersection there? A. Yes.

" 'Q. You have driven there a number of times? A. Yes, sir.

" 'Q. You knew it was a stop street? A. Yes.

" 'Q. You knew it was a stop street and the fact that it was a dangerous intersection? A. Yes, that opposite street makes it obscure.

" 'Q. Wasn't the front of your car pointed in a northwesterly direction? A. Yes, it would be.

" 'Q. You would have had to do that to have made your way into Robinson Place, wouldn't you? A. Yes.'

"All of the above testimony was given by the defendant on cross-examination. In further explanation of the accident this defendant testified on direct examination as follows:

" 'Q. Have you ever been out in that particular neighborhood before, Mr. Sherrill? A. Oh, yes, many times.

" 'Q. Were you familiar with the various streets that have right of ways out there? A. Yes, sir.

" 'Q. When you came up to Line Avenue where did you stop your car? A. I stopped it over the yellow mark a little bit.

" 'Q. Did you stop at the stop sign? A. I think I drove over a little.

" 'Q. Did you stop it? A. Across the middle line a foot or two.

" 'Q. As you started across the street did you continue to look for cars that was across the street? A. I was looking; I had my head down looking straight across where I was going; I know it broke the steering wheel off when the lick hit, I had my head out and I failed to see a car in there.

" 'Q. After you looked all directions for cars, then what did you do? A. I went across like I had the right of way.'

"Again on cross-examination Mr. Sherrill further testified as to the accident as follows:

" 'Q. I mean you did not see any man driving a car which collided with you later, turn out to be Dr. Cole, before the collision occurred? A. No.

" 'Q. You came to that intersection, stopped and looked north and you did not see any car at all? A. No.

" 'Q. You could see two or three hundred feet? A. Yes, sir, to my right, that is, I was going west and I could see a couple of hundred feet down to that alley, and I could see back the other way that there was not a car in sight. I stopped the car, I was looking, I was looking the way I was going and blump! I was hit!

" 'Q. You did not apply your brakes, of course, because you did not see anything? A. I did not see anything to apply them for.'

"In other words, our conclusion from the testimony is definite that if Mr. Sherrill stopped he was in such a position with reference to the yellow line that he could not properly observe the traffic on the dangerous intersection that he was attempting to traverse. Certainly, the obligation was imposed on this defendant to so drive as to observe the conditions on Line Avenue and particularly is this true where he was familiar with the intersection and the fact that he would be forced to travel about 60 feet in Line Avenue in negotiating this crossing. Had he stopped his car three or four feet over the yellow line he could have seen the traffic for over two blocks and ordinary care would dictate that he do this since he was familiar with the intersection.

"We are quite aware of the doctrine that a person crossing a right of way street is not required to be constantly on the alert and observing cars during the entire trip through the intersection, but at the same time a driver is required to observe the conditions of traffic before entering therein, and had Mr. Sherrill done this no accident could have occurred.

"Counsel for the defendant estimates the distance traveled from the curb line to the point of contact at 44 feet. Had Mr. Sherrill looked to his right he would have observed the approaching car of Dr. Cole and therefore have had ample opportunity to stop before actually entering Line Avenue. This was clearly the duty of the defendant in view of the obstructions observed by him and for the additional reason that he would not be making a regular crossing, but one that required his presence in Line Avenue to the extent necessary in this case.

"Many of the...