Daricek v. Forrest

• Decision Date: 02 April 1937
• Docket Number: 5347
• Citation: 173 So. 601
• Court: Court of Appeal of Louisiana — District of US
• Parties: DARICEK v. FORREST

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 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 truck to let it pass, his truck then being partly on the pavement and partly on the west shoulder of the highway. In this position his truck was struck by plaintiff's car approaching from the north. Both vehicles, especially plaintiff's car, were badly damaged by the collision."

The car which the truck driver saw approaching from the south, after he reached the highway, was one being driven by Johnnie Templeton. While several hundred feet away and traveling at 25 or 30 miles per hour, Templeton noticed the truck ascending the runway and entering onto the pavement. He brought his car to a stop on the south end of the bridge. The collision occurred shortly thereafter.

The evidence conclusively shows that Jones, the truck driver, was grossly negligent. Traffic on the paved highway enjoyed the right of way over machines entering thereon from the private runway in question. Section 3, rule 11, subd. (e), Act No. 21 of 1932. It was the mandatory duty of Jones to give due observance to vehicles approaching on that thoroughfare and to yield to their passage if they were in such close proximity that his proceeding into the path of travel...