Day v. Roberts

• Decision Date: 30 November 1951
• Docket Number: No. 7751,7751
• Citation: Day v. Roberts, 55 So.2d 316 (La. App. 1951)
• Parties: DAY v. ROBERTS.
• Court: Court of Appeal of Louisiana

Page 316

55 So.2d 316

DAY v.ROBERTS.

No. 7751.

Court of Appeal of Louisiana, Second Circuit.

Nov. 30, 1951.

Clarke & Preis, St. Joseph, for appellant.

Philip Watson, St. Joseph, for appellee.

GLADNEY, Judge ad hoc.

The judgment below awarded plaintiff, Earl Edward Day, damages as a result of an automobile collision occurring during the clear and dry midafternoon of March 27, 1950, on U. S. HighwayNo. 65 opposite a building which served as an office for Somerset Plantation in Tensas Parish, Louisiana.

Events leading up to the accident show that plaintiff was driving his 1949 Plymouth sedan in a northerly direction while defendant, Edd Moore Roberts, was approaching him traveling south.When defendant reached a point just north of the place of ultimate impact between the cars, and apparently not realizing the proximity of plaintiff, he turned left across the path of the Plymouth car with the resulting crash.He made the turn without giving any signal of his intention to do so and commenced this maneuver when the oncoming car was within a distance of one hundred fifty feet.Plaintiff applied the brakes on his car and in fact skidded his tires for a distance of about fifty feet but did not stop in time.

The suit is defended on the ground that the proximate cause of the accident was the speed of plaintiff's automobile and alternatively is pleaded contributory negligence and application of the last clear chance doctrine.

The highway at Somerset, as we refer to the office and store next to it, is fairly straight and from this point affords a motorist clear vision for about one thousand feet to the south and three hundred feet to the north but beyond this latter distance, because of the sharpness of the curve and buildings on the highway, southbound traffic is not visible until the curve is rounded.About fifty feet north from where the automobiles collided there is a culvert crossing the highway.

Mr. Roberts, the defendant, testified he drove from his house for the purpose of stopping at the store, crossed the culvert at a speed of fifteen miles and commenced a gradual left turn across the highway, reducing his speed to about five miles per hour but giving no signal of his intention to make the turn.When he first noticed plaintiff's car it was about one hundred fifty feet away.He further states that at the time of impact his automobile had crossed the center line of the highway and had entered the traffic lane in which the northbound vehicle was traveling.The evidence further indicates a finding that when the two cars struck they were headed almost at a right angle to each other.

Our associate on the trial bench found the defendant primarily negligent in not seeing what he should have seen and by making a left turn without proper signal, or, at least, making sure before attempting it that he could make such turn without danger of accident.He found plaintiff was not negligent, and rejected defendant's alternative defenses.

After weighing all the evidence relating to the speed of plaintiff's automobile as a contributing cause, we have concluded that the speed was neither illegal nor excessive on this occasion.The last clear chance doctrine is inapplicable as it has not been shown that plaintiff had an opportunity to avoid the collision after becoming aware of a peril which could not have been realized until defendant attempted his turn, at which time it was too late for plaintiff to change direction.

We hold the proximate cause of the collision was the failure of defendant to exercise proper care under the circumstances by being sure he could make the left turn without danger.

Act 286 of 1938, Section 3, Rule 9(a), LSA-R.S. 32:235, requires one making a left turn upon state highways to yield the right of way to approaching traffic in either direction and not to make the turn unless the way is clear.

In commenting upon the statute...