Davis v. Lewis & Lewis

• Decision Date: 13 December 1954
• Docket Number: No. 41927,41927
• Citation: 78 So.2d 174,226 La. 1064
• Parties: Louis C. DAVIS v. LEWIS & LEWIS et al. In re: Louis C. Davis, Plaintiff-Appellee, Applying for a Writ of Certiorari to the Court of Appeal, First Circuit, State of Louisiana.
• Court: Louisiana Supreme Court

Page 174

78 So.2d 174

226 La. 1064

Louis C. DAVIS v. LEWIS & LEWIS et al. In re: Louis C. Davis, Plaintiff-Appellee, Applying for a Writ of Certiorari to the Court of Appeal, First Circuit, State of Louisiana.

No. 41927.

Supreme Court of Louisiana.

Dec. 13, 1954.

Rehearing Denied Feb. 14, 1955.

Anders & Anders, by D. J. Anders, Winnsboro, for Louis C. Davis, relator.

Theus, Grisham, Davis & Leigh, Monroe, for respondent.

MOISE, Justice.

A writ was granted to review a judgment of the Court of Appeal, First Circuit, which reversed the judgment of the trial court, which rendered a judgment in favor of Louis C. Davis for $10,000, 72 So.2d 612, for injuries sustained in an automobile accident.

Our concern here is on the merits of the case.

In 226 La. 1059, 78 So.2d 173, we affirmed the judgment of the Court of Appeal which overruled the plea of prescription filed by the Globe Indemnity Company, the defendant. The First Circuit Court of Appeal adopted the facts as found by the trial judge, and we have adopted the same facts in this Court. The Court of Appeal reversed the judgment in the district court on the application of the law and found that the plaintiff was guilty of contributory negligence--which opinion we do not share, and to which opinion Judge Cavanaugh, one of the Judges of the Court of Appeal, dissented.

The facts are as follows:

The date of the accident was January 1, 1948. It occurred in the Parish of West Feliciana, and it was on the gravelled Woodville-Jackson Road. Plaintiff was driving, with members of his family, a 1937 Chevrolet. They were on their way from Winnsboro, Louisiana to Jackson, Louisiana. At a point about one-half mile south of the Mississippi-Louisiana line, plaintiff and the occupants of his car noticed a truck, heavily loaded with pulpwood, approaching them around a curve in the road of travel north and on the wrong side of the highway. About 300 steps distance from the approaching truck plaintiff sounded his horn to attract the attention of the truck driver, who was giving no heed to the traffic at all. Finally, the truck driver attempted to pull over to his side of the road, but he had waited too long to do what was his duty to do and he failed to get the trailer part of his truck clear. As a result, plaintiff's automobile was sideswiped by the trailer hitting the left front end of his car, causing severe and possible permanent injury to plaintiff. His leg was broken, with the bones protruding through the flesh, and he had to remain in the hospital for a period of fourteen months.

After seeing, hearing and observing the witnesses and the manner of giving their testimony, the trial Judge made the following observations as to the testimony:----

'The testimony of the witnesses for the defendant tends to the conclusion that entire responsibility for the accident is attributable to plaintiff. In one particular only is the testimony of the plaintiff and that of the truck driver in agreement. The plaintiff testified that he was as far over in his proper lane of travel as he could get. The truck driver likewise testified that plaintiff was on his proper side of the road, that he himself was on his proper side of the road and no collision would have occurred had not plaintiff in attempting to pull further over became involved in loose gravel which swung him back to the left causing the automobile to strike the bumper and left side of the front of the pulp wood truck. It seems that besides the driver of the truck there were two other people occupying the cab. It further appears that one of these people was asleep and only awakened when the truck and the automobile were approximately fifty feet apart. It might be said at this time that the details of the position of the wheels of the respective motor vehicles and other minute details of what happened, cast serious doubt on this witness' testimony. 'He saw too much in too short a time when suddenly aroused from sleep, for his testimony to be creditable.' (Italics ours.)

'It seems to me that the nub of the whole question lies in the verity of one particular portion of the testimony given by the plaintiff, and that is, did the plaintiff sound his horn. If his testimony is true as to this fact then it becomes immediately apparent that the driver of the truck and his passenger, Nelson Campbell, were paying no attention to the road ahead of them and the approaching car. It is my belief, based upon all the testimony offered, that the driver, Willie Wright, did not know which side of the road plaintiff's car was on for the simple fact that he was paying no attention to the road ahead of him and that he resorts to the suggestion that plaintiff in attempting to get further to his right got his wheels in loose gravel and this caused his car to swerve to the left and strike the approaching truck. (Italics ours.)

'It appears that the truck had just rounded a curve when the outside,--that is to say his proper lane of travel going north, was banked so as to be somewhat higher than the inside lane which was the proper lane for a car going south, as it was the right hand side of the road. This physical fact lends credence to plaintiff's testimony that he was on his proper side of the road as he approached the truck. There appears no earthly reason why he should have been anywhere else. On the other hand, the courts have recognized the tendency of motor vehicles, whose proper lane would be on the outside of a curve, to cut the curve and take the inside especially if traveling at any considerable speed and heavily loaded, as the pulp wood truck appears to have been. (Italics ours.)

'Considering that creditability of witnesses is a determining factor in any case where there is a sharp conflict in the...