Ellis v. Whitmeyer

• Decision Date: 01 June 1938
• Docket Number: 5652
• Citation: Ellis v. Whitmeyer, 183 So. 77 (La. App. 1938)
• Parties: ELLIS (CENTRAL SURETY & INS. CORPORATION, Intervener) v. WHITMEYER et al
• Court: Court of Appeal of Louisiana

183 So. 77

ELLIS (CENTRAL SURETY & INS. CORPORATION, Intervener) v. WHITMEYER et al

No. 5652

Court of Appeal of Louisiana, Second Circuit.

June 1, 1938

Madison, Madison & Fuller, of Bastrop, for appellants.

Bernstein Clark & Thompson and Theus, Grisham, Davis & Leigh, all of Monroe, for appellees.

OPINION

DREW Judge.

In this case the lower court, in a well prepared opinion, has correctly stated the issues and the facts as disclosed by the record.It is as follows:

"PlaintiffJoe Ellis, brought this suit to recover judgment against defendants, Arkansas-Louisiana Gas Company, Randell Whitmeyer and Fidelity & Casualty Company of New York for damages for personal injuries sustained by him in an accident in which he was struck by an automobile owned by the Arkansas-Louisiana Gas Company, driven by Randell Whitmeyer, an employee of Arkansas-Louisiana Gas Company, and insured by the Fidelity & Casualty Company of New York.

"Central Surety & Insurance Corporation, the compensation insurer of the Louisiana Highway Commission, plaintiff's employer, has intervened in the suit, seeking to recover the compensation and medical expenses which it has paid to plaintiff and for which it has and will become responsible, together with an attorney's fee in the amount of $ 750.

"Plaintiff's cause of action is founded upon the alleged negligence of Randell Whitmeyer in the operation of the automobile which struck plaintiff.

"The defense is a denial of any negligence on the part of Whitmeyer and defendants plead, in the alternative, that plaintiff himself was guilty of contributory negligence, such as to bar his right of recovery.

"There is little conflict in the testimony of the witnesses and the facts of the case are rather well and clearly established.

"The facts show that on the morning of October 5, 1936, plaintiff, an employee of the Louisiana Highway Commission, in company with six other employees of said Commission, left Monroe and proceeded to a point about a mile and a half west of Choudrant, in Lincoln Parish, where they were engaged in the work of repairing a bridge on U.S. HighwayNo. 80.In carrying on their work, these workmen operated and used three large motor trucks, one of which is described as a compressor truck.Upon their arrival at the bridge and before beginning their day's work, they placed these trucks at convenient places on the south side of the highway.

"U. S. HighwayNo. 80 is a paved highway and its general direction is east and west.The pavement is 18 feet wide and there is a black line about six inches wide extending along its center.The shoulders are from five to six feet in width.

"The bridge in question is 28 feet long and 24 feet wide, and was constructed simply by a gradual widening of the pavement from a width of 18 feet to a width of 24 feet.On each side of the bridge, about six inches from the outer edge, is a rail four or five feet high resting on six posts.

"The compressor truck had an over-all measurement of eight feet in width and 21 feet in length.It was headed west, its south side resting against or near the south rail of the bridge.About half of its total length, the rear half, was on the bridge, while the front half extended west of the bridge, and a distance of approximately four feet intervened between the north side of this truck and the black center line on the pavement.

"Having thus located the trucks, the workmen next set out motorists' warning signs both east and west of the bridge.They placed a red flag 220 feet east of the bridge and one 150 feet west of it.They placed what is called a portable "slow' sign approximately 500 feet east of the bridge and another of similar type approximately 1300 feet west of the bridge.This latter sign was two feet square, with the word "slow' inscribed on its face in large letters, and stood 18 inches high.A red flag was placed on top of said sign.The signs east of the bridge on the north shoulder of the road and those to the west of the bridge were placed on the south shoulder.They were large enough to be easily seen by a motorist and were located in such position as to be on the right hand side of a motorist traveling toward the bridge and were so placed that the red flag extended over the edge of the concrete slab.

"The highway to the west of the bridge is straight for a distance of 700 feet, at which point a slight curve to the south begins.Looking west the vision point, that is, the point at which a car can be entirely seen, is 1350 feet from the bridge and is on top of a hill.The contour of the surface of the highway is not level all the way between the vision point and the bridge, but a car between these two points can always be seen from the bumper up by a man standing on the bridge.On the other hand, a person traveling toward the bridge from the west, at all times, after reaching the vision point, has a clear view of the bridge and of any persons or cars that may be thereon.

"All preliminary arrangements having been completed and their safety adequately guarded, they thought, these workmen began their labors and continued same, without mishap, until about three o'clock in the afternoon when the accident complained of happened.

"At the time of the accident, four of the workmen, viz; plaintiff, I. S. Rodgers, Willie Jernigan and Blackie Petch, were working on the surface of the highway on or near the bridge, and the other three, including Joe Meeks, the foreman of the crew, were working under the bridge.Plaintiff and Rodgers had just finished sharpening some pilings, on the shoulder of the highway just east of the bridge, and plaintiff had walked to the bridge and had assumed a standing position against the south rail thereof, facing south, at a point on the bridge some four or five feet behind the compressor truck, while Rodgers had stopped at and was leaning against the truck fartherest from the bridge.Jernigan was standing on the top ends of some pilings outside of and next to the south rail and Blackie Petch was standing on the bridge near plaintiff.Reuben Frasier, a visitor on the job, was also standing near plaintiff.

"While all of said parties were occupying the aforementioned positions, Joe Meeks, the foreman, who was then on the south side of and beneath the bridge, called to plaintiff and asked him to meet him on the other side of the bridge.In order to meet Mr. Meeks at the point designated, it was necessary for plaintiff to cross the highway and, on account of some large concrete blocks resting on the shoulder of the road next to the northeast corner of the bridge, to descend the embankment, on the north side, at a point eight or ten feet east of the bridge.Before plaintiff moved from the position he occupied when called by Mr. Meeks he looked toward the west, in which direction he had a clear view of the highway for a distance of 1350 feet, and saw no car in sight.He then turned and started walking at an ordinary gait in a northeasterly direction, toward the point where he intended to descend the embankment and go under the bridge and meet foreman Meeks, and had reached and was in the act of stepping across the black center line when he was struck and knocked down by Whitmeyer's car.According to the most satisfactory calculation I can make, from all of the evidence on the point, plaintiff had walked approximately 30 feet from the place where he stood when Meeks called him to the point where he was struck.During that time, he did not again look toward the west and did not see or hear Whitmeyer's car before it struck him.Not seeing any car approaching from the west, when he looked in that direction, plaintiff thought he had sufficient time to cross to the other side of the highway before a car coming from the west, not yet in sight, could get to the bridge.

"Randell Whitmeyer was traveling from the west toward the east.There is a conflict in the testimony as to the rate of the speed of his car immediately preceding and at the time of the accident.He was driving a Ford V-8 automobile in first-class mechanical condition.

"Whitmeyer testified that he was driving 50 or 55 miles per hour as he approached the scene of the accident.He did not remember seeing the "slow' sign west of the bridge, but he did see the red flag floating from the top of that sign.When he saw this red flag, he slowed the speed of his car down to 30 or 35 miles per hour and maintained that speed until the moment he saw plaintiff step from behind the compressor truck, when, in an effort to avoid striking plaintiff, he accelerated the speed of his car.Just before reaching the "slow' sign, Whitmeyer passed a car owned by J. D. White and occupied by Mr. White and his driver, Vasco Revels.Mr. White and Revels estimated the speed of the White car at a minimum of 55 miles per hour, and Mr. White estimated the the speed of Whitmeyer's car at 65 or 70 miles.This point was a little over a quarter of a mile from the bridge, the scene of the accident, and Mr. White testified that he remarked to Revels that "the fellow (Whitmeyer) seemed to be in a hurry', and, at that time, observed his own speedometer which was resting on 55.

"Messrs. Rodgers, Jernigan and Petch saw Whitmeyer's car strike plaintiff.Neither one of them saw the car as it approached this point.Rodgers estimated its speed at from 65 to 80 miles per hour; Jernigan from 65 to 70, and Petchat 65 miles per hour.

"A blood spot was left on the pavement at the point where the car struck plaintiff.Whitmeyer stopped his car 162 feet east of this blood spot, the last 43 feet of which distance was marked by skid marks made by the tires of his car.

"Reuben Frasier, a resident of that vicinity, and a mere visitor on the job at the time of the accident, was...