Derouen v. American Emp. Ins. Co.

• Decision Date: 20 January 1960
• Docket Number: No. 4925,4925
• Citation: 118 So.2d 522
• Parties: Vernus DEROUEN et ux., Plaintiff-Appellant, v. AMERICAN EMPLOYERS INSURANCE CO. et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 522

118 So.2d 522

Vernus DEROUEN et ux., Plaintiff-Appellant, v. AMERICAN EMPLOYERS INSURANCE CO. et al., Defendants-Appellees.

No. 4925.

Court of Appeal of Louisiana, First Circuit.

Jan. 20, 1960.

Rehearing Denied March 21, 1960.

Certiorari Granted April 25, 1960.

Johnson & LeBlanc, New Iberia, for appellant.

Helm, Simon, Caffery & Duhe, New Iberia, Stafford & Pitts, Alexandria, for appellees.

ELLIS, Judge.

This suit is filed by a guest passenger for personal injuries and by her husband, who sued for reimbursement of medical expenses incurred by his wife, as a result of an intersectional collision which occurred in the City of New Iberia, Louisiana in daylight hours at approximately 4:30 p.m. on January 2, 1957 between an automobile being driven by Mrs. Fedora Maturin, a sister of her guest passenger plaintiff herein, Mrs. Zoe Rome Derouen and the car being driven by Mrs. Galdwin Derouen, no relation of the guest passenger. Mrs. Galdwin Derouen's two small daughters, aged three and four, were in the car suit was filed against Mrs. Galdwin sit was filed against Mrs. Galdwin Derouen, her husband, and his insurer, and the insurer of the Maturin automobile in which Mrs. Zoe Rome Derouen was a guest passenger.

At the trial on the merits, the District Judge in his written reasons for judgment stated that as both drivers contended and testified that they went into the intersection with a favorable green light, that it was a self evident fact that one of the drivers was in error, and that he was unable for reasons given to decide which had the green light and that he could find no other evidence, direct or in the nature of a physical fact, to aid him in reaching a conclusion as to which driver had the green light. The lower court then concluded that as the burden of proof was upon the plaintiffs that they had failed to prove the negligence charged by preponderance of the evidence and he therefore rendered judgment in favor of the defendants and against the plaintiffs, dismissing the suits of the plaintiffs at their cost.

Motion for a new trial was filed in which the alleged errors of the lower court were set forth in order, numbering one to seven. The lower court with written reasons for its ruling on the application for a new trial or rehearing, denied the new trial, whereupon plaintiffs appealed to this court.

Counsel for plaintiffs in the main disagree with the legal conclusions which the district judge applied in arriving at his judgment. We find that the record fully substantiates the correctness of the facts as found by the District Judge, the correctness of the law which he applied to these facts and the conclusion which he reached. We therefore take the liberty of quoting the reasons for judgment of the Lower Court, the application for a rehearing and/or new trial and the reasons of the District Court for its ruling on the application for a new trial or rehearing, and adopt the reasons for the judgment and for the denial for a new trial or rehearing as our own. We quote:

'At about 4:00 P.M. on January 2, 1957 Mrs. Galdwin Derouen was driving her family car, a 1951 Plymouth automobile on Dale Street in the City of New Iberia. She was traveling north. She had with her her two small daughters, Debbie and Christine Derouen.

'At the same time Mrs. Whitney Maturin was driving her family car, a 1954 Ford automobile, on Walton Street. She was traveling west. She had with her as her guest, Mrs. Vernus Derouen.

'These two streets are paved and intersect at right angles. Traffic at their intersection is intended to be controlled by an ordinary green and red traffic light which hangs over the center of the intersection.

'Both cars were being driven at about 25 miles per hour as they approached the intersection. Both of the lady drivers claim that the light was green as they approached it. Neither slowed down or took any other precaution against cross traffic. Consequently, they collided in the center of the intersection. The Ford, on Walton Street, struck the Plymouth, on Dale Street, in its center on its right side. The Ford struck with its front. The Plymouth was turned over and Mrs. Galdwin Derouen and one of her daughters were injured. The two ladies in the Ford were also injured. The cars were badly damaged.

'These actions flow as a result of this collision. Mr. and Mrs. Galdwin Derouen, on behalf of themselves and their children, are suing Mr. and Mrs. Whitney Maturin and the public liability insurance carrier on the Maturin car, the Firemen's Insurance Company of Neward, New Jersey.

'In the other action, the passenger, Mrs. Vernus Derouen is suing Mr. and Mrs. Galdwin Derouen, and the public liability insurance carrier on the Plymouth, the American Employers Insurance Company and also the Firemen's Insurance Company who had the liability policy on the Ford in which she was riding.

'The principal witnesses at the trial were the three ladies.

'Mrs. Galdwin Derouen testified that she had a green light at the intersection. Mrs. Maturin testified that she had the green light. She is corroborated by her guest, Mrs. Vernus Derouen. At least Mrs. Derouen said the light was green as they approached it. She did not look at it constantly until they entered the intersection.

'There is no other testimony on the point except that of the policeman who was called at the scene. He said that the light was working properly while he was there. There is no evidence, or contention, that it was not working properly.

'It is evident that one of the drivers is in error. The light could not have been green on the two streets at the same time.

][ ]No citation of authority is necessary to show that the lady having the green light was entitled to proceed, and not the other. The one having the red light was under a legal obligation to stop. When she failed to stop she became guilty of negligence, which obviously was the direct cause of the collision. This rendered her, her husband and their insurer liable for the injuries and damages thereby caused.

'However, it is not possible from the evidence to determine which lady entered the intersection on a red light. It is therefore not possible to fix the responsibility for the collision. Unlike most collisions, there are no physical facts, or other mute evidence, to aid us in reaching a conclusion. A finding on that point can be based only on speculation.

'The testimony of each driver is entitled to equal credibility because there is nothing in their testimony to which we can resort to give more weight to the testimony of one than to the other, or to discredit one and not the other. It is true that Mrs. Maturin is corroborated to an extent by her guest passenger, Mrs. Vernus Derouen. But Mrs. Derouen was not driving, so she had less interest than the other ladies in making a mental note of the light. Then again, she says that she did not observe the light continuously until they reached the intersection. It could have turned red without her noticing it.

'The addition of Mrs. Derouen's testimony to that of Mrs. Maturin does not unbalance the scale to the extent that it can be held to have established, by a preponderance of the evidence, that it was Mrs. Galdwin Derouen who had the red light, because the weight to be given evidence does not necessarily depend upon the number of witnesses who give it. In other words, two witnesses are not necessarily better than one.

As these two actions are brought under our general tort law, Articles 2315 and 2316 of our (LSA-)Revised Civil Code, in order to succeed the plaintiffs must prove the defendants to have been negligent. Negligence is the basis of the actions. Unless the plaintiff establish it by a preponderance of the evidence against the defendants, or the insureds, no recovery can be had. This is the case here. The evidence shows that at least one of the drivers was probably negligent, but it fails to show which one. Under these conditions, we cannot render judgment against either.

'Counsel for the guest passenger, Mrs. Vernus Derouen, argue that she could not possibly have been negligent because she was not driving, and to bar her from recovery is to do her an injustice. They point out that the two drivers could have seen each other approach the intersection, and to have proceeded when it became apparent that the other was not stopping, constituted negligence regardless of the traffic light. They were therefore both negligent and the passenger should recover from both of them, or their insurers.

'But it is not an accepted fact that the two drivers could see each other in time to stop. There is a solid board fence and a residence on the corner that was between them. At the distances from the intersection that place the house between the drivers, it was, of course, not possible for the drivers to see each other. When they reached closer to the intersection, the fence was between them. Only the very tip of the top of an automobile is visible over the fence. The photographs show that. But by the time the drivers reached this point, it would probably have been impossible to stop. Under these circumstances we cannot hold both drivers negligent.

But aside from that, one approaching an intersection on a green light has the right to assume that all cars approaching it on a red light will stop. More than likely when it becomes apparent that the car that is supposed to stop will fail to do so, it is too late for the car on the green light to stop in time to prevent a collision. This is particularly true at a blind intersection as is the one involved here.

'According to the table in the 14 Tulane Law Review at page 503, the stopping distance for a car traveling 25 miles per hour is approximately 53 feet. It was therefore incumbent on the drivers, or either of them, to have applied the brakes 53 feet from the intersection if a collision was to be avoided. At that distance, it could hardly have been foreseen by either driver...