Daricek v. Forrest, 5347

CourtCourt of Appeal of Louisiana (US)
Writing for the CourtHAMITER, Judge.
Citation173 So. 601
PartiesDARICEK v. FORREST
Decision Date02 April 1937
Docket Number5347

173 So. 601

DARICEK
v.
FORREST

No. 5347

Court of Appeal of Louisiana, Second Circuit.

April 2, 1937


H. W. Ayres, of Jonesboro, for appellant.

Vinson M. Mouser, of Columbia, for appellee.

OPINION

HAMITER, Judge.

A collision occurred on the Hodge-Jonesboro paved highway in Jackson parish between a Chevrolet coupe, owned and driven by plaintiff, and a Ford V-8 truck operated by one H. C. Jones, an employee of defendant, H. A. Forrest.

With the view of recovering judgment for the damages sustained by his car, plaintiff brought this suit against H. A. Forrest and the United States Fidelity & Guaranty Company. This last-named defendant was made a party to the proceeding under allegations that it had insured the truck against property damage; however, upon learning that no such insurance was in existence, plaintiff abandoned his claim against that company. H. A. Forrest, therefore, is the only defendant in the case.

Negligence on the part of the truck driver is charged by plaintiff, and responsibility is sought to be fixed on defendant under the master and servant doctrine. Defendant admits that Jones was his employee and was in the discharge of his duties when the accident occurred; but the allegations of negligence are denied. In the alternative, defendant avers that plaintiff was guilty of contributory negligence and is barred from a recovery of damages.

A trial of the case on its merits resulted in a judgment rejecting plaintiff's demands. He perfected this appeal.

Between 2 and 3 o'clock on the afternoon of July 15, 1935, plaintiff, together with Henry Daricek, his brother, and Ed Rasberry, a friend, left the town of Hodge in plaintiff's coupe for the purpose of enjoying an afternoon of fishing, and drove south on the paved highway toward the town of Jonesboro. They were somewhat late in starting on their journey. All three were riding on the one seat of the vehicle. The collision with the truck occurred at a [173 So. 602] point about 12 feet north of the north end of the highway bridge nearest to Hodge. The road in that vicinity is straight for a distance of 300 or 400 yards.

The trial judge's well-considered written opinion furnished an accurate description of the place of accident, the truck driver's activities immediately prior to and at the time of the collision, and other pertinent facts, and we quote the following from it.

"On the day of the accident and for some two months prior thereto defendant was engaged in the construction of a concrete sidewalk along the west side of and parallel with the highway from Jonesboro to Hodge. For some distance in each direction from the locus of the accident the highway is on an embankment five or six feet high. The embankment or fill for the sidewalk was made by widening the highway embankment to such a width that the center line of the concrete slab of the sidewalk would be 12 feet from the west edge of the concrete slab of the highway. The dirt necessary for this fill was hauled on trucks equipped for that purpose from the hillside several hundred yards north towards Hodge. The trucks engaged in this work would travel down the highway some distance from the loading ground to the vicinity of the fill and would then leave the pavement and travel alongside the highway embankment on the newly constructed embankment to the place to unload. After unloading they would turn to the left and ascend to the highway on a specially constructed passage or runway for that purpose and then turn north on the highway for the return trip to the loading ground. The runway referred to entered the highway a distance of 12 feet from the north end of the bridge. This bridge is 114 feet in length, is of concrete construction, with iron railings on both sides. These railings rest on iron posts one and one half inches in diameter anchored in the concrete floor of the bridge.

"H. C. Jones, an employee of defendant, drove the truck involved in the accident in question along the route outlined from the loading ground to the place near the said bridge where the dirt was being dumped and stopped and dumped his load. Before turning to the left and entering the highway on the nearby runway he looked back up the highway to the north to see if any traffic was approaching and saw a car, which unquestionably was plaintiff's, coming in his direction at a distance which he estimated to be from 200 to 300 yards. He did not look to the south at that time. Thinking that he had ample time to make his turn to the left and enter the highway and cross to the opposite side before the oncoming car from the north reached that point he made that turn and drove up the runway onto the highway. As the front end of his truck passed on to the west half of the pavement Jones for the first time looked towards the south for approaching traffic, but, at that time he did not again look to the north. He saw a car coming from the south on the opposite side of the highway about 200 feet away and not being sure that he had time to cross over to the opposite side and get his truck straightened out north ahead of that car he stopped his...

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3 practice notes
  • Allen v. Texas & Pacific Ry. Co., Civ. A. No. 2873.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • March 5, 1951
    ...Lehon v. New Orleans Public Service, 10 La.App. 715, 123 So. 172; Mese v. Summers, La.App., 170 So. 510; Daricek v. Forrest, La.App., 173 So. 601. Headnote 3 of the syllabus by the Court in Borell v. Cumberland Telegraph & Telephone Co., 133 La. 630, 63 So. 247, L.R.A. 1916D, 1064, "Whether......
  • Allen v. Texas & Pacific Ry. Co., No. 13716.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 1, 1952
    ...under the Louisiana law. Lehon v. New Orleans Public Service Ice, Inc., 10 La.App. 715, 123 So. 172, 174; Daricek v. Forrest, La.App., 173 So. 601, 603; Slayter v. Texas & Pacific Railway Co., La.App., 182 So. 343, 346; Matthews v. New Orleans Terminal Co., La.App., 45 So.2d 547, The accide......
  • Ellis v. Whitmeyer, 5652
    • United States
    • Court of Appeal of Louisiana (US)
    • June 1, 1938
    ...a situation such as we have here, is clearly defined and set forth by Judge Hamiter's opinion in the case of Daricek v. Forrest, La.App., 173 So. 601, as follows (page 603): " "After thoroughly considering all of the evidence in the record, we are convinced, as was the trial judge, that pla......
3 cases
  • Allen v. Texas & Pacific Ry. Co., Civ. A. No. 2873.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • March 5, 1951
    ...Lehon v. New Orleans Public Service, 10 La.App. 715, 123 So. 172; Mese v. Summers, La.App., 170 So. 510; Daricek v. Forrest, La.App., 173 So. 601. Headnote 3 of the syllabus by the Court in Borell v. Cumberland Telegraph & Telephone Co., 133 La. 630, 63 So. 247, L.R.A. 1916D, 1064, "Whether......
  • Allen v. Texas & Pacific Ry. Co., No. 13716.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 1, 1952
    ...under the Louisiana law. Lehon v. New Orleans Public Service Ice, Inc., 10 La.App. 715, 123 So. 172, 174; Daricek v. Forrest, La.App., 173 So. 601, 603; Slayter v. Texas & Pacific Railway Co., La.App., 182 So. 343, 346; Matthews v. New Orleans Terminal Co., La.App., 45 So.2d 547, The accide......
  • Ellis v. Whitmeyer, 5652
    • United States
    • Court of Appeal of Louisiana (US)
    • June 1, 1938
    ...a situation such as we have here, is clearly defined and set forth by Judge Hamiter's opinion in the case of Daricek v. Forrest, La.App., 173 So. 601, as follows (page 603): " "After thoroughly considering all of the evidence in the record, we are convinced, as was the trial judge, that pla......

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