Demandre v. Robinson, 3394

• Decision Date: 03 March 1969
• Docket Number: No. 3394,3394
• Citation: 220 So.2d 542
• Parties: Helen DEMANDRE, Calvin Demandre and Joseph Albert Demandre v. Si B. ROBINSON, Austin B. Wilson and Argonaut Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

Page 542

220 So.2d 542

Helen DEMANDRE, Calvin Demandre and Joseph Albert Demandre v. Si B. ROBINSON, Austin B. Wilson and Argonaut Insurance Company.

No. 3394.

Court of Appeal of Louisiana, Fourth Circuit.

March 3, 1969.

Rehearing Denied April 7, 1969.

Joseph E. Defley, Jr., Port Sulphur, for Calvin Demandre and Joseph Albert Demandre, plaintiffs-appellants.

Pittman & Matheny, Iddo Pittman, Jr., Hammond, for Helen Demandre, plaintiff-appellant.

Provensal & Fitzmaurice, Edmond H. Fitzmaurice, Jr., New Orleans, for defendants-appellees.

Before SAMUEL, BARNETTE and JOHNSON, JJ.

SAMUEL, Judge.

This is a suit for damages for an alleged wrongful death which occurred when the decedent, a pedestrian, was struck by a pickup truck while he was crossing a highway. Plaintiffs are the widow and the two major children of the decedent. Defendants are the driver of the truck, his employer and the latter's public liability insurance carrier. After trial on the merits there was judgment in favor of the defendants and against the plaintiffs, dismissing the suit at the latters' cost. Plaintiffs have appealed. In this court, as they did prior to trial in the district court, they concede negligence on the part of the decedent and contend the defendants are liable under the doctrine of last clear chance.

These are the undisputed facts relative to the accident: It occurred on February 8, 1964 at approximately 8:30 p.m. on Louisiana Highway No. 23 about 1.8 miles south of Port Sulphur in the Parish of Plaquemines. The weather was clear and the night was dark. At the scene of the accident the highway was a straight and level two-lane, two-way concrete road, 24 feet in width, with shelled shoulders on each side. The decedent, who was 70 years of age and retired, was struck by the defendant pickup truck while he was attempting to cross the highway on foot from the east or river side where he had his home to the west side. The impact took place in the west half of the highway in the traffic lane in which the southbound defendant truck was traveling. It was of such severity that the decedent's left leg was traumatically amputated and he was killed instantly.

Under our settled jurisprudence a litigant relying upon the doctrine of last clear chance or discovered peril has the burden of proving all facts and circumstances necessary to its application and before the doctrine can be invoked these three essential facts must be established by a preponderance of the evidence: (1) that the person invoking the doctrine (here the decedent) was in a position of peril of which he was unaware or from which he was unable to extricate himself; (2) that the person against whom the doctrine is invoked actually discovered or was in a position where he could and should have discovered such other person's peril; and (3) that at such time the person against whom the doctrine is invoked could have avoided the accident with the exercise of reasonable care. Glatt v. Hinton, La.App., 205 So.2d 91; Kraft v. U. Koen & Company, La.App., 188 So.2d 203; Moses v. Sanders, La.App., 164 So.2d 177; Soileau v. New Hampshire Insurance Company, La.App., 160 So.2d 793.

In attempting to carry this burden of proof plaintiffs filed in evidence, without objection from opposing counsel, the deposition of the defendant driver who, counsel for both sides inform us, was the only eye witness to the acciden ¹ and called the following witnesses: Robert H. Galmiche, a draftsman for the Plaquemines Parish Highway Engineers; James C. Hoffman, Plaquemines Parish Commission Council Safety Engineer; and Dr. J. T. Reeves, a physician who had been Coroner of Plaquemines Parish at the time of the accident. The testimony of these three witnesses was offered for the purpose of showing the illumination of the highway, the legal speed limit and the speed of the defendant truck at the scene, and at the time, of the accident.

In his deposition the defendant driver states: At the time of the accident he worked for the defendant employer as a wire line operator, testing wells for safety equipment. On the day of the accident he left the employer's place of business in Ferriday, Louisiana in the company pickup truck for the purpose of driving to a motal in lower Plaquemines Parish to spend the night and to be flown by helicopter to the wells in the morning. He was familiar with the general area in which the accident happened as he had been driving through it for several years in connection with his work. The accident occurred below Port Sulphur in a neighborhood where there were scattered residences. The weather was clear; it was a dark, cold night; the truck windows were up; and there were no lights in the area which illuminated the highway. His speed was approximately 55 miles per hour. He saw the lights of an approaching vehicle which was traveling north, in the opposite direction from which he was traveling. When he thought his lights might interfere with the approaching driver, he dimmed them and the approaching driver did the same. He first saw the decedent when the latter, apparently running and then stopping or hesitating with his hands in the air, suddenly appeared directly in the path of his truck only a few feet in front of the left front fender. He applied his brakes as fast as possible but the truck hit the decedent the instant he saw him.

Mr. Galmiche identified a map showing the area involved. He had marked the places where telephone poles were located along the highway and (as later identified by Mr. Hoffman) the location of the decedent's home which was almost directly across the highway from a VFW building. He testified to the presence of only one light which possibly could have illuminated the highway. That light was an outdoor night light similar to a flood light hung on a pole near the rear of a shelled parking area in front of the VFW building, which parking area was between that building and the highway. The map shows that the light mentioned is a considerable distance off the highway and a short distance south of the point where the accident occurred. He was not questioned regarding any change in highway illumination subsequent to the accident.

Mr. Hoffman testified that in connection with his work as safety engineer for the parish council he investigated fatal accidents in the parish and had investigated this accident, arriving at the scene in less than an hour after its occurrence. He took photographs of the scene, the covered body lying on the highway, the defendant pickup truck, etc. He found that the truck's left front head lamp and the windshield on the driver's side were broken and that its left front fender and bumper were damaged. He had investigated nearly 200 traffic fatalities and had never before seen a case where a limb had been severed by the front of a vehicle hitting a pedestrian. After being accepted by the court as an expert...