Desselle v. State, Through Dept. of Public Highways
| Decision Date | 10 March 1976 |
| Docket Number | No. 5378,5378 |
| Citation | 328 So.2d 389 |
| Parties | Berkley DESSELLE, Individually and on behalf of his minor son, Keith B. Desselle, Plaintiff-Appellant, v. STATE of Louisiana, Through the DEPARTMENT OF PUBLIC HIGHWAYS, Defendant- Appellee. |
| Court | Court of Appeal of Louisiana — District of US |
Edwards, Stefanski & Barousse by James M. Cunningham, III, Crowley, for plaintiff-appellant.
Domengeaux & Wright by Jack C. Fruge, Jr., Lafayette, for defendant-appellee.
Before HOOD, GUIDRY and PETERS, JJ.
This suit was instituted by Berkley Desselle, individually and on behalf of his minor son, Keith B. Desselle, seeking damages largely for personal injuries sustained by young Desselle when a motorcycle which he was operating struck a hole in a public highway. The defendant is State of Louisiana, Through the Department of Public Highways. The trial court rendered judgment in favor of defendant, rejecting plaintiff's demands. Plaintiff appealed.
The issues presented are whether defendant was negligent in having failed to repair the above defect in the highway before the accident occurred, and, if so, whether young Desselle also was negligent with the result that plaintiff is barred from recovering.
The accident occurred about 5:00 P.M., on April 21, 1973, on Louisiana Highway 700 in Lafayette Parish. Young Desselle and his friend, Randall Atkinson, were operating or driving their motorcycles north on that highway at that time. They were traveling side by side, with Desselle on the right of Atkinson, and there were no passengers on either motorcycle. The front wheel of Desselle's vehicle struck a hole or defect on the right or east side of the highway, causing Desselle to be thrown over the handlebars and to fall and slide on the surface of the highway. As a result of that accident, he sustained injuries which form the principal basis for this suit.
The highway at that point is a straight, level, two-lane, blacktopped thoroughfare. The weather was good, the sun was shining, the surface of the road was dry and visibility was good when the accident occurred. There were no other vehicles on the highway in that vicinity at that time.
Young Desselle was 15 years of age. He and his friend were traveling at a speed of about 50 miles per hour as they approached the place where the accident occurred. Although plaintiff's son had driven his motorcycle on other roads in that immediate vicinity, he had not traveled over this particular stretch of highway before the date of this accident.
Immediately before and at the time the accident occurred, Atkinson was riding in the northbound lane of traffic, about one foot from the center line of the highway, and young Desselle was riding about three or four feet on the right or east side of him, nearer the east edge of the blacktopped slab. Desselle did not see the hole in the road until the instant he struck it, and he did not apply his brakes or veer to either side in an effort to avoid striking it. He stated that when he saw the hole 'it was there,' or that he was 'right on it,' and that he didn't have time to apply his brakes or avoid striking it. He also explained that if he had veered to his left he would have collided with Atkinson, and that he therefore 'just hit the hole.' He was unable to describe the depression in the highway or to estimate its dimensions.
Desselle apparently took his eyes off the road momentarily just before he reached the point where the accident occurred, and we think that explains why he did not see the defect in the highway until the moment he struck it. He testified that:
The witnesses differ as to the size, depth and location of the hole, and as to the distance at which it should have been visible to Desselle.
Plaintiff, Berkley Desselle, visited the site of the accident two or three days after it occurred, and he estimated the size of the hole as being two feet in diameter and 10 to 12 inches deep. He determined that the hole was located 'right at where the wheels of the car passed,' and that it was about 150 to 175 feet north of a bridge on the highway. He testified that he could see the hole from the bridge, that is, when he was 150 to 175 feet from it, but he explained that he knew that the hole was there, and that 'if somebody that wasn't used to it, you'd have to be right on it.'
Joseph M. Bertrand, Jr., a relative of plaintiff by marriage, traveled over that highway regularly twice a day. He could not estimate the size or depth of the hole, but he stated that the hole 'didn't come out in the tire tracks,' but only 'to the tire tracks.' He felt that the driver of an automobile could and should see the hole when he was about 60 feet from it.
Nelson Arceneaux, a foreman for the Highway Department, described the hole as being about two and one-half feet wide, four feet long and from two and one-half to three inches deep. He stated that he had never seen a hole in any road that was 10 to 12 inches deep. He placed the location of the hole as being on the east side of the road, 'right to the edge of the blacktop,' and from 300 to 400 feet north of a bridge on that highway. He testified that a motorist approaching the hole from the south could see it at least from 100 to 200 feet before he reached it.
Daniel Leger, who resides near the site of the accident and travels over the highway there twice a day, felt that the hole was three feet wide, four or five feet long, and two or three inches deep. He expressed no opinion as to the distance at which a motorist could see it.
Atkinson, the only eye witness to the accident other than plaintiff's son, did not testify at the trial.
The trial judge did not indicate in his reasons for judgment what he concluded as to the size, depth and location of the above hole in the highway, and neither did he make a specific finding as to...
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