Duree v. State, 4464

• Decision Date: 28 June 1957
• Docket Number: No. 4464,4464
• Citation: 96 So.2d 854
• Parties: Allene Hopwood DUREE, Individually and as Tutrix, Plaintiff-Appellee, v. STATE of Louisiana through Department of Institutions, Defendant-Appellant, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 854

96 So.2d 854

Allene Hopwood DUREE, Individually and as Tutrix, Plaintiff-Appellee, v.STATE of Louisiana through Department of InstitutionsDefendant-Appellant, et al.

No. 4464.

Court of Appeal of Louisiana, First Circuit.

June 28, 1957.

Rehearing Denied Sept. 23, 1957.

Writ of Certiorari Granted as to State's Exceptions Nov. 12, 1957.

L. C. Parker, Baton Rouge, for plaintiff-appellee.

Major & Ponder, Percy & Macmurdo, Baton Rouge, for defendants-appellees.

Jack P. F. Gremillion, Atty. Gen., Harry Fuller, Asst. Atty. Gen., J. L. Madden, Asst. Atty. Gen., for defendant-appellant.

TATE, Judge.

At about noon on October 27, 1954, a State ambulance was proceeding south on the Airline Highway, through the outskirts of Baton Rouge, when it ran into a westbound Chevrolet driven by Roy Larson at the Greenwell Springs Road intersection.As a result of this collision, Jack W. Duree, a front seat passenger in the Chevrolet, was killed.The present damage suit is by Duree's widow, individually and as the tutrix of the surviving minor child of the union.

Made co-defendants were: The State of Louisiana, through the Department of Institutions, which appeals from adverse judgment; the State's liability insurer, which is not a party to this appeal, having paid off its full policy limits subsequent to adverse judgment below; Louis Lang, the State's ambulance driver, who (not having taken an appeal from adverse judgment) is likewise not a party to this appeal; and Roy Larson and his liability insurer, who are before this Court by virtue of plaintiff's devolutive appeal from the judgment below insofar as it dismissed plaintiff's demand against these latter two parties.¹

The Airline Highway is a main and much-travelled four-lane thoroughfare.Its western two lanes (21.5 in width altogether) are reserved for southbound traffic and are separated by a wide (30 ) neutral ground from the eastern two lanes thereof (also 21.5 in width) used by northbound traffic.The Greenwell Springs Road is a hard-surfaced two lane thoroughfare, 20 in width.Signal lights control the flow of traffic at the intersection in question.

The right rear of the Larson Chevrolet was struck after it had entered the intersection from Greenwell Springs Road going from the east towards the west, and had crossed the eastern two lanes, the neutral ground, and most of the western two lanes.(The point of impact involving the Rear of the vehicle was 5 south of the north curb line of Greenwell Springs Road, 14 3 east of the west curb line of the Airline Highway, and 7 3 west of the west curb line of the neutral ground.)The front center of the ambulance, which was proceeding south on the western two lanes of the Airline Highway, struck the Chevrolet with such force as to overturn and hurl it 71 southwest of the point of impact, the Chevrolet landing upside down in the ditch.

The chief factual dispute is which of the two vehicles had the favorable green 'Go' light and which the inhibiting red 'Stop' light, the southbound State ambulance or the westbound Larson Chevrolet?

The applicable law is not in dispute.As specifically noted in the very similar case of Roll Osborn & Sons, Inc. v. Howatt, La.App. 2 Cir., 167 So. 466, under LSA-R.S. 32:247 municipal ordinances within municipal limits regulate the speed of emergency vehicles such as ambulances and their duties with regard to traffic signals; rather than the pertinent State enactments, LSA-R.S. 32:230, 237, subd. F, 238.

The applicable ordinance of the City of Baton Rouge provides that emergency vehicles 'shall not drive through an intersection where a traffic signal is exhibiting the signal 'Red' or 'Stop' without first slowing down and ascertaining that such can be done safely and without endangering those who might be in, or entering such intersection, and provided further that drivers of ambulances shall in no event drive same at a speed in excess of forty miles per hour,'Title 11, Chapter 1, Section 6, Code of the City of Baton Rouge adopted September 19, 1951.As in the Roll Osborn case, the ambulance was required to respect the right of way of those who were proceeding across the intersection in obedience to the green 'Go' traffic signal in their favor and in reliance upon the red 'Stop' traffic signal regulating transverse traffic.

The vast preponderance of the evidence supports the trial court's factual determination that the ambulance, at high speed, its siren inaudible or just pressed a split-second before the impact, ran the red light inhibiting its entrance into the intersection which the Larson car had almost completed crossing.

That the light was red as to the ambulance and green as to Larson seems certain, and that it had turned green for Larson about six seconds before the impact (when he was 150--200 from the intersection, and he crossed almost 70 of the intersection at 30 mph, i.e., at 44 per second) seems equally certain, from the court-accepted testimony (corroborated by surrounding circumstances) of Larson and of a disinterested northbound motorist who had drawn to a stop as the light switched against him and in favor of Larson.By the testimony of the traffic supervisor in charge thereof, the three-cycle lights had therefore been red for approximately 24 seconds as to southbound traffic.Several witnesses, including Larson, a northbound motorist, and the ambulance driver himself testified that at least one southbound vehicle preceding the ambulance had stopped at the intersection; and several northbound vehicles were stopped or stopping.

Indeed, with commendable candor the ambulance driver does not seriously deny an adverse light; he merely states that as he approached the intersection slightly slowing from 60 mph to 40--45 mph, the red light flicked to a yellow caution (an impossibility, according to the traffic supervisor, since the caution light always preceded, never followed, the red) and thereupon he accelerated, not seeing the Larson vehicle; immediately following which occurred the fatal accident.

The excessively high speed of the ambulance is indicated by its driver's testimony, his admission to the investigating police officer at the time of the accident to a speed of 65 mph, the testimony of virtually all witnesses, and the physical facts surrounding the impact.In extenuation, it should be added that the ambulance was transporting a sick and believed dying child to the State's Charity Hospital in New Orleans, the oxygen supply was running low, and the ambulance driver's mind was upon getting his patient to the destination without delay.

The State further argues that the decedent and Larson, his driver--or at least the latter, so that Larson and his insurer are solidarily liable with it--were negligent in not perceiving the oncoming ambulance or hearing its siren.Although the occupants of the ambulance stated that the siren was blowing, the testimony is virtually undisputed that as to other traffic, the siren was inaudible or not sounding except a split-second or so before the ambulance smashed into the Larson vehicle.

In Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292, our Supreme Court had occasion to discuss the relative duties of the drivers at an intersection regulated by traffic signals.Holding that the sole proximate cause of the accident was the negligence of the driver who ran the red light, the Court held that the driver who proceeds into an intersection on a favorable traffic signal 'has the right to assume that the signals are understood and will be observed and he is not required to anticipate that pedestrians or other motorists will, in violation of law, enter a crossing on a wrong signal,' for 'under the traffic light system a motorist, who is proceeding on a proper signal, should not be held to the same degree of care and vigilance as if no such system prevailed,'24 So.2d 294.To hold negligent the conduct of a motorist proceeding in response to a favored traffic light, 'the courts should be convinced that the dereliction was most substantial,'24 So.2d 295.

In the Kientz case, as in this, the favored driver had almost completely crossed a four-lane roadway with a wide neutral ground, and the Court specifically commented upon the fact that having done so, 'there was no reason for him to believe that it would be dangerous to continue over the short distance of the intersection yet to be traversed,'24 So.2d 295.

The Kientz case cited with approval the Roll Osborn decision, supra cit., in which the sole proximate cause of an accident involving a motorist proceeding under a favored traffic signal was held to be the negligence of the ambulance driver in running a red light at high speed.It should be added that in the Roll Osborn case the ambulance was struck by the favored motorist, 167 So. 468, whereas in the present instance the motorist was hit in the rear of his vehicle by the ambulance after almost completely crossing all four lanes and the neutral ground, a circumstance indicating that the ambulance in the present instance was relatively further from the intersection at the time the present motorist entered same.

The following cases also support the District Court's determination that Larson, a motorist proceeding with the green light, was not negligent in failing to keep a watchout for those who might enter the intersection from the unfavored direction and was not required to anticipate that others would, in violation of law, enter the intersection on an unfavorable light: White v. Travelers Ins. Co., La.App. 2 Cir., 94 So.2d 564;Stevenson v. Williams, La.App. 2 Cir., 76 So.2d 345;Niagara Fire Ins. Co. v. Schouest, La.App. Orleans, 58 So.2d 739;Fitzpatrick v. New Orleans Public Service, Inc., La.App. Orleans, 22 So.2d 473;Seiner v. Toye Bros. Yellow Cab Co., La.App. Orleans, 18 So.2d 189;Clark v. De Beer, La.App. 2 Cir., 188 So. 517, certiorari denied;Saks v. Eichel, La.App. 2 Cir., 173 So. 558(involving...