Dunlap v. Armendariz

• Decision Date: 20 June 1972
• Docket Number: No. 4948,4948
• Citation: 265 So.2d 352
• Parties: William F. DUNLAP v. Eduardo ARMENDARIZ and Members Mutual Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

Page 352

265 So.2d 352

William F. DUNLAP v. Eduardo ARMENDARIZ and Members Mutual Insurance Company.

No. 4948.

Court of Appeal of Louisiana, Fourth Circuit.

June 20, 1972.

Arnold & Giepert, Melvin J. Giepert, New Orleans, for plaintiff-appellee.

Drury, Lozes & Curry, James H. Drury, H. Edward Weidlich, Jr., Elmore P. Becker, New Orleans, for defendants-appellants.

Before CHASEZ, STOULIG and BOUTALL, JJ.

STOULIG, Judge.

This appeal is from an adverse jury verdict awarding plaintiff-appellee, William F. Dunlap, $10,461.81 as compensation for the damages he sustained in an accident with the defendant-appellant, Eduardo Armendariz. Appellant assigns as error the failure of the jury to find Mr. Dunlap contributorily negligent, or, in the alternative, that the quantum awarded is excessive.

This suit arises out of an intersectional collision which occurred at North Claiborne Avenue and Tupelo Street in New Orleans, Louisiana, On February 21, 1969, at approximately 8:40 p.m.

According to the appellee, he was operating his truck in the outbound, or river side, lanes of North Claiborne Avenue, the favored thoroughfare, and as he was proceeding through the intersection, the appellant's automobile suddenly emerged from the neutral area and struck the left front door of his truck. He did not see the Armendariz automobile until momentarily before the accident.

Mr. Armendariz testified that he was driving his automobile on Tupelo Street with the intention of completely traversing North Claiborne Avenue. As he drew abreast of the lake side of North Claiborne he came to a complete stop in obedience to a stop sign. He then proceeded to the neutral ground which separates the inbound and outbound lanes of North Claiborne and again came to a stop. As he entered the river side lane of North Claiborne he collided with the north side of the Dunlap truck. Though he looked to his right, Mr. Armendariz was unaware of the presence of the approaching truck until the moment of impact. Both of the passengers in his car testified that the truck was being operated without headlights on, but he was unable to confirm this circumstance. Mr. Dunlap disputed this allegation testifying that his lights were on, recalling that they were shining against a building on North Claiborne Avenue after the collision.

After hearing the testimony of all witnesses, the jury determined that the appellee's version more accurately reflected the actual occurrence of the accident. After reviewing the record we find there was a reasonable evidentiary basis for the jury's verdict on the issue of negligence. Of necessity, then, we conclude that no manifest error was committed. Under the well-settled jurisprudence the findings of fact of the trial jury must therefore remain undisturbed.

Appellant questions the reasonableness of the damages awarded to Mr. Dunlap for his injuries and related expenses in connection with treatment. Mr. Dunlap suffered a cervical and thoracic sprain and some soft tissue damage to his left arm and left rib cage. His treating physician diagnosed the cervical sprain as moderately severe, finding objective evidence of muscle spasm. Mr. Dunlap was hospitalized for 18 days, from March 19, 1969, to April 5, 1969, for treatment in the form of traction and hot showers. He continued this treatment at home for some four months after his release from the hospital.

A neurosurgeon who consulted in the treatment of Mr. Dunlap also testified to objective findings of muscle spasm and straightening of the lordotic curve, and characterized the cervical sprain as moderate. Furthermore, this specialist assigned a 10-percent permanent disability with the likelihood of exacerbation and remission of associated soreness which could be self-treated with some type of mild pain suppressor.

This injury...