Crow v. Alesi

• Decision Date: 15 November 1951
• Docket Number: No. 3453,3453
• Citation: Crow v. Alesi, 55 So.2d 16 (La. App. 1951)
• Parties: CROW v. ALESI et al.
• Court: Court of Appeal of Louisiana — District of US

Page 16

55 So.2d 16

CROW v.ALESI et al.

No. 3453.

Court of Appeal of Louisiana, First Circuit.

Nov. 15, 1951.

Rehearing Denied Jan. 10, 1952.

Writ of Certiorari Denied Feb. 18, 1952.

Huckabay, Seale, Kelton & Hayes, Baton Rouge, for appellant.

Breazeale, Sachse, Wilson & Hebert, Baton Rouge, for appellee.

ELLIS, Judge.

Plaintiff is seeking to recover damages individually and for the use and benefit of his minor son as a result of a rear end collision between his panel bodied truck which he was driving in which his son was a guest passenger on December 21, 1948 at about 11:00 A.M., and a gravel truck owned and being driven by the defendant Alesi, which was insured by Lumbermen's Mutual Casualty Company, other defendant herein.

Plaintiff alleged that on the date of the accident he, accompanied by his son, was driving in a careful and prudent manner in a northerly direction on the Plank Road in East Baton Rouge Parish, and that for several miles along said highway a gravel truck owned and operated by the defendant Alesi was also proceeding in a northerly direction in front of plaintiff's truck, the distance separating the two trucks being in excess of 100 feet at all times prior to the collision, and that the defendant Alesi suddenly and without any warning of any kind whatsoever stopped his gravel truck immediately in front of and directly in the traffic lane of plaintiff's on-coming truck.Despite every effort made by the plaintiff to stop his truck he was unable to do so because of the suddenness with which the Alesi truck stopped, and he ran into the back of this gravel truck.

In the alternative, and in the event the Court should find plaintiff guilty of any negligence which was the proximate cause or contributed to the accident, plaintiff plead that the defendant by his own actions created and confronted plaintiff with a sudden emergency from which he had no opportunity to extricate himself or his minor son.

The defendant denied all material allegations of the plaintiff's petition and in the alternative especially plead contributory negligence on the part of the plaintiff.

From an adverse judgment in the District Courtthe defendant has appealed and the plaintiff has answered the appeal individually in which he asks that the judgment be increased from $5,000 to $7,500 and otherwise affirmed.

In such cases the law is well-settled, and able counsel for plaintiff and defendant have thoroughly covered the subject in their briefs.Counsel for defendants, on the question of the obligations of the preceding and following drivers of motor vehicles on open highways, cites the expression of the court in Weitkam v. Johnston, La.App., 5 So.2d 582, 584, 585, and the cases and authorities therein cited as follows:

'Counsel for plaintiff, in contending that Miss Weitkam was not at fault, rest their argument on the well established rule that a following driver should operate his car at such speed as will permit of its being stopped however suddenly or unexpectedly the car ahead may be brought to a stop.This rule is expressly set forth in the cited traffic ordinance, paragraph 'a' of Section 14 of Article V of which provides that

"The operator of a motor vehicle shall not follow another vehicle or street car more closely than is reasonable and prudent, having due regard to the speed of such vehicle or street car and the traffic upon and the condition of the roadway.'

'That rule is expressly recognized in many cases, notably Greer v. Ware, La.App., 187 So. 842;Fuld v. Maryland Casualty Co., La.App., 178 So. 201;Session v. Kinchen, La.App., 178 So. 635;Roberson v. Rodriguez, La.App., 186 So. 853;Ardoin v. Robinson, La.App., 176 So. 228.

'We quote the following from the Greer case(187 So. 844):

"According to the law and jurisprudence of this state, when two automobiles are being driven along a public road in the same direction, on a country road, the driver of the front car holds no duty to the car in the rear, except to use the road in the usual way in keeping with the laws of the road, and until he has been made aware of the presence of such rear car by signal or otherwise, he has a right to assume that there is no other vehicle in close proximity in his rear or, if there is one there, it is under such control as not to interfere with his free use of the road in any lawful manner.And in the absence of facts or circumstances that would put the driver of an automobile on notice of the near approach of another machine from the rear, he may drive show or fast, select the parts of the road best suited to travel, stop or start at will.And where two automobiles are being driven along a highway in the same direction, the forward car has the superior right.This was held in the case of Stevens v. Dean, 6 La.App. 537.'

'This rule is particularly applicable where automobiles are on country roads, though the reasons on which it is based make it applicable also, to some extent, on city streets, byt it does not, in any sense, relieve the driver of the leading car of the obligation to drive carefully and to avoid sudden and unexpected stops which may create dangerous emergencies.In other words, even though Johnston may have been at fault in crashing into the Weitkam car, which had been suddenly and unexpectedly stopped, his negligence in that regard would not, in itself, have caused the accident had Miss Weitkam operated her car in conformity with the provisions of the traffic ordinance and with the dictates of prudence.'

Counsel for plaintiff also cited the Weitkamcase, supra, and recognized the rule of law that a motorist following other traffic is required to keep his automobile at a safe distance behind so as to enable him to stop his car in a sudden emergency.They cited cases to the effect that this rule does not apply where the emergency was created by the negligence of the forward motorist and in this connection has referred the Court to Leon v. Neal, La.App., 34 So.2d 276, 278, in which it was stated: 'Plaintiff cites and quotes from cases wherein the sudden emergency doctrine was applied.In those cases it was held that a motorist should not follow another so closely that he could not stop his own vehicle before running into the forward one should a sudden emergency arise that would force the forward car to instantly stop.It is clear these cases are not applicable here because the emergency was created by the negligence of the forward motorist.There existed no condition or circumstance that made it necessary for him to stop his car quickly and without giving the proper signal.'

Also seeShockley v. Norvell-Wilder Supply Co., La.App., 49 So.2d 51;Volume60 C.J.S., Motor Vehicles, § 301, p. 710;Hill v. Knight, La.App., 163 So. 727;Reeves v. Caillouet, La.App., 46 So.2d 373;Adams v. Morgan, La.App., 173 So. 540;Smith v. Smith, La.App., 36 So.2d 388;Section 931 of Chapter 26, Blashfield's Cyclopedia of Automobile Law and Practice.

The question in the case is whether the defendant, as contended by the plaintiff, stopped suddenly without any warning so as to create an emergency, and whether the reason for defendant's sudden stop was due to his having been faced with an emergency or was entirely of his own volition.The answer to this question depends upon the facts.

The undisputed facts show that on the date of this collision the defendant was driving his gravel truck north on the highway known as the Plank Road in East Baton Rouge Parish, and following behind him for approximately nine miles was the panel truck driven by the plaintiff who was accompanied by his minor son.In front of the defendant on the highway was a jeep driven by the witness, Bud Rankin, who was engaged in the paper business.In the opposite lane of traffic, traveling in a southerly direction on this highway prior to the collision, was a truck belonging to the Crescent Furniture Company, driven by the witness J. A. Babin, loaded with mattresses or at least one mattress.Behind the mattress truck were one or two cars which are, to some extent, material to a correct interpretation of the facts as will be shown later.

It is also undisputed that the three named motor vehicles traveling in a northerly direction on the highway had been going at approximately 45 to 50 miles per hour.

It is not disputed that at the moment of the collision the defendant had just come to a stop or was practically stopped, however, the defendant disputes the fact that he made a sudden stop without warning, but, on the contrary, contends that he stopped gradually because the driver of a car in front of him had put out his hand and was making a gradual stop and finally did stop and then proceeded on up the highway.The plaintiff contends that there was no car between defendant and the jeep driven by the witness Rankin.

On the question of the sudden stop we have only the testimony of the plaintiff and his son.Plaintiff testified that he followed this truck a distance of 9 or 10 miles at 45 or 50 miles per hour and that he stayed from 100 to 150 feet to the rear at all times.Of the accident he testified:

'A.Well, I was driving just like most any person would be on the highway out in the wide open country, not dreaming of anybody stopping on the road and all of a sudden he just stopped and when I saw he was stopped, I tried to stop and tried to go around him and I tried to cut to the ditch and didn't have time and the left front of my truck kinder went under the right back corner of his truck, kinder at an angle.

'Q.Did you see the mattress fly off of the furniture truck?A.No, sir.

'Q.How far behind this gravel truck were you when you realized he was stopping or stopped?A.I would say I was about one hundred to one hundred and fifty feet behind him.

'Q.Were you then going at the speed which you had been driving at?A.Yes, sir.

'Q.What distance would you say that the gravel truck took to stop in?A.Well, I would say he stopped as...