"Plaintiff
Joe 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. Highway No. 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. Highway No. 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 Petch at 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...