Coltharp v. Hearin Tank Lines, Inc.

• Decision Date: 21 March 1960
• Docket Number: No. 43187,43187
• Citation: 118 So.2d 881,239 La. 445
• Parties: Leland H. COLTHARP, Sr., et al., v. HEARIN TANK LINES, INC., and Winfred Kirkland.
• Court: Louisiana Supreme Court

Page 881

118 So.2d 881

239 La. 445

Leland H. COLTHARP, Sr., et al., v. HEARIN TANK LINES, INC., and Winfred Kirkland.

No. 43187.

Supreme Court of Louisiana.

March 21, 1960.

Porter & Stewart, John B. Scofield, Lake Charles, for appellants.

Hall & Coltharp, DeRidder, for plaintiffs-appellees.

VIOSCA, Justice.

This case involves only question of fact. The district judge, in a comprehensive and well-reasoned opinion, has covered the issues fully. We have reviewed the record and find that there is little that we can add to his opinion. We accordingly adopt it as our own and quote it in full:

'This is a suit for property damages arising out of a collision between a cattle transport truck owned by plaintiff, Coltharp, driven by his employee Eugene Hickman, with Douglas Hickman, also an employee, riding beside the driver, and a gasoline transport truck owned by defendant, Hearin Tank Lines, Inc., and driven by its employee Winfred Kirkland, who is also a defendant herein.

'The collision occurred in Beauregard Parish, between 12:00 and 1:00 o'clock A.M., September 22, 1954, on U.S. Highway 171, which is a paved road, the paved slab being 18 feet wide, running approximately north and south, at a point about thirteen miles south of the City of DeRidder. The Coltharp truck was traveling north, which would make its proper lane of traffic the east lane, while the Hearin truck was traveling south, its proper lane of traffic being the west one.

'Each of the parties contends, both by pleading, evidence adduced and argument, that the accident was caused solely by the negligence of the other in driving on the wrong side of the road, and, for the same reason, defendant additionally pleads alternatively, the contributory negligence of plaintiff's employee, and reconvenes for the amount of the damages to its truck.

'It was stipulated that the Coltharp truck was damaged to the extent of $2603.55, while defendant's truck was damaged to the extent of $1954.50, and that of the damages suffered by Coltharp, plaintiff, Southern Farm Bureau and Casualty Company, is subrogated to the extent of $2353.55.

' In view of the stipulation of ownership of the trucks, the damages suffered by each, the subrogation, and that the drivers of the respective trucks were acting within the scope of their employment by their respective employers, but one question remains for decision, and that is one of fact, namely, which one (or both) of the trucks was traveling on the wrong side of the road at the time of the accident.

'The case was tried on April 11 and 12, 1956, resulting in some 266 pages of testimony, but at the request of counsel, was left open for the submission of briefs, the last of which was filed July 20, 1956, and the case submitted as of that date.

'Plaintiffs called to the stand four witnesses to prove their contention that at the moment of the collision and for sometime prior thereto, the Coltharp truck was being driven in the east lane, its proper lane of traffic, and the Hearin Truck was being driven astride the center line of the road with its truck's left wheels some two or two and one-half feet east of that center line, while defendant called twelve witnesses to prove its contention that its truck was being driven in the west and its proper lane of traffic, and the Coltharp truck was being driven astride the road's center line, with the truck's left wheels some two to two and one-half feet west of the road's center line.

'The testimony offered in support of the respective contentions is hopelessly irreconcilable.

'Of the sixteen witnesses called to the stand, only three saw the accident, namely, Eugene Hickman, ho was driving the Coltharp truck, his fellow employee and cousin, Douglas Hickman, who was riding in the cab of that truck, and defendant's employee, Winfred Kirkland who was driving defendant's truck and is also a defendant.

'Both Hickmans testified positively that at the moment of the impact between the trucks that Coltharp truck was as far to its right hand or east side of the paved slab of the road as it could get, while the left wheel of the Hearin truck was some two to two and one-half feet on the wrong or east side of the road's center line. Defendant Kirkland, on the other hand, testified with equal positiveness, that it was the Coltharp truck that was traveling with its left wheels over the center line, and west of that line some two or two and one-half feet, while the truck he was driving was traveling well on its own or the west side of the road with some of its wheels on the road's west shoulder.

'All of the witnesses agree that in the collision the left front wheel of the cattle truck was knocked off, but there is definite disagreement as to the point on the road upon which the end of the axle or spindle, that is the part upon which the wheel runs, first struck the road and the course of the mark it left on the road from that point to the point at which it came to rest, on the right hand or east side of the road, some 125 feet north of the point of impact. The substance of the testimony of both Hickmans is that the end of the spindle, as we will call it, struck the pavement about two and one-half feet east of the road's center line, and from the marks it left in the pavement, as well as the trail of some liquid, water or brake fluid, also starting in the east lane, the path of the Coltharp truck was traced as starting in the east lane, swerving or turning into the west lane, and back into the east lane. The picture P--1, filed in evidence by plaintiff was identified by State Police Trooper Chance as being a true representation of the situation on the ground at the scene of the accident, the view being from the south to the north. It probably should be said now that the Court in arriving at the conclusion it has reached as to how the accident happened and whose fault it was, has given great weight to Trooper Chance's testimony. Mr. Chance has been a State trooper for more than five years and of course during that experience has investigated many traffic accidents. As a matter of fact, he has been a witness in this Court on a number of occasions. His testimony is always straightforward, clear and concise, and has always impressed the Court as being wholly trustworthy. Trooper Chance arrived at the scene of the accident at about 1:30 A.M. Upon arrival, and after ascertaining no one was injured, he proceeded to make an investigation so as to establish the point of impact. He found in the east lane of traffic what he took to be water from the Coltharp truck's radiator, about four feet east of the road's center line, and about two feet east of that line, he found glass and other debris. The water or liquid, beginning about four feet east of the center line, was traceable on the road from that point on several feet to where it crossed over the center line, and then back onto the east lane and to where the Coltharp truck had come to rest in the east lane 125 feet from the point of impact. Trooper Chance marked with a dotted line on the picture P--1, the line of travel the Coltharp truck took after the impact, his opinion being based on where he found the debris (marked X), the first water (marked W) and te tracing of the water markings, along the path shown by the dotted line, to where he found the Coltharp truck. In the west lane of traffic, on the west side of the road at the point marked 'Wheel' on the picture, he found the imprint of a wheel, which he took to be the one from the Coltharp truck, which imprint was located 28 feet north (or northeast) of the point of impact, as he fixed that point. The imprint of the wheel or its 'lugs', as Chance believed, was made by the wheel being run over. He found no debris, glass or other evidence of the impact having occurred in the west, or the Hearin truck's lane of traffic.

'It should be noted here that one of the controlling reasons causing the Court to reach the conclusions it has reached is that the water or other liquid found by Chance, within an hour after the accident, could be and was traced by him from the point of impact, in the east lane, to the point where the Coltharp truck came to rest and this same showing of water or other liquid could very well have, and probably had, entirely disappeared before any of defendant's witnesses, other than Kirkland himself, viewed the scene several hours after the accident.

'Archie Pharis, another witness for, and an employee of plaintiff's, went to the scene of the accident to pull the Coltharp truck off the road and bring the driver back. When he arrived, the two Hickmans, Kirkland and Trooper Chance were the only ones present. He assisted Chance in making the measurements on the road. He saw the 'wet spot' and some dirt 'there where the trucks contacted one another' and a 'mark on the road', which he said were between two and three feet east of the road's center line. This witness testified that the marks could be traced from the point they started on the east side, over across the center line and back to the east side, thus corroborating Chance as to the line of travel of the Coltharp truck, after the impact, until it came to rest. He said that, according to their measurements and what they could see, they thought the outside dual wheels of the Coltharp truck, or possibly both outside dual wheels, were on the shoulder of the road. He saw no skid marks, scratch marks or truck marks on the west side of the road at the point of impact but there were glass and debris on the east side.

'It is obvious that unless the two Hickmans, Trooper Chance and the witness Pharis lied, the collision occurred in the east lane of traffic. Neither of the four named witnesses have any direct personal interest in the outcome of the case. As employees, the Hickmans and Pharis, may be said naturally to be more favorable to their employer than to the defendant, a stranger, but certainly Trooper Chance cannot be said to...