Eubanks v. Brasseal

• Decision Date: 04 September 1974
• Docket Number: No. 12380,12380
• Citation: 300 So.2d 500
• Parties: Thomas Perry EUBANKS, Jr., Plaintiff-Appellant, v. Isaac BRASSEAL et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 500

300 So.2d 500

Thomas Perry EUBANKS, Jr., Plaintiff-Appellant, v. Isaac BRASSEAL et al., Defendants-Appellees.

No. 12380.

Court of Appeal of Louisiana, Second Circuit.

Sept. 4. 1974.

Rehearing En Banc. Denied Oct. 1, 1974.

Writ Granted Nov. 15, 1974.

Due & Dodson by Paul H. Due, Baton Rouge, for plaintiff-appellant.

Theus, Grisham, Davis & Leigh by R. L. Davis, Jr., Monroe, for defendants-appellees.

Before BOLIN, PRICE and WILLIAMS, JJ.

BOLIN, Judge.

Plaintiff brought this suit for damages alleging he was injured when a one-ton truck he was driving was struck from the rear by a large truck-trailer unit loaded with gasoline, being driven by Isaac Brasseal. Made defendants were Brasseal, his employer and the latter's insurer, who denied Brasseal was negligent and, in the alternative, alleged plaintiff was contributorily negligent. For reasons set forth in a lengthy written opinion, the trial judge found the accident was caused solely by the negligence of plaintiff and, from a judgment signed in conformity therewith, plaintiff appeals. We agree plaintiff was negligent and, pursuant to defendants' special plea of contributory negligence, the judgment is affirmed.

The collision occurred on November 18, 1971, about 3:30 p.m., on U .S. Highway 165 in Caldwell Parish. It was raining and the surface of the highway was slick. Plaintiff had passed Brasseal at a traffic light in Monroe and both vehicles proceeded south on Highway 165, with Eubanks driving the lead vehicle. Eubanks testified he did not remember seeing the Brasseal truck in his rear view mirror but that the latter must have been following closely behind since they both were traveling 50 to 55 miles per hour.

Brasseal said he had plaintiff's vehicle in view to his front at all times until they reached the Riverton overpass immediately preceding the collision. The two vehicles proceeded south in this position for approximately seven miles until they reached the overpass crossing a railroad track. The terrain in the vicinity of the overpass was flat and the overpass was constructed of large mounds of dirt on each side of the railroad track with the bridge being built to connect the space between the mounds of dirt.

Eubanks approached the north side of the overpass driving his truck between 50 and 55 miles per hour. He proceeded up the incline and as he reached the apex which was approximately in the middle of the bridge he noticed a vehicle approaching him from the opposite direction with a blue blinker light on the top. When he first noticed this approaching vehicle it was near the bottom of the overpass on the south side. He testified he did not know at first what the flashing signal indicated, but slowed his truck anticipating that it was an emergency vehicle in a stationary position and working a wreck. Edbanks continued southward and as he reached the vehicle with the blinker light he learned it was a sheriff's department car leading a funeral procession. Eubanks testified he was driving about 15 miles per hour and that he continued traveling at this same rate of speed. He gave as a reason for continuing his slow speed that steel guard rails were on each side of the highway and that he did not deem it wise to drive any faster while meeting and passing a funeral procession.

Brasseal testified he was driving his gasoline truck approximately 50 to 55 miles per hour and that he first noticed the sheriff's department car when he was about halfway up the incline on the north side of the overpass. Upon noticing the blue blinker light on the approaching car, Brasseal said he let up on his accelerator, causing his truck to slow down to some extent. As soon as Brasseal had passed the emergency vehicle he realized the oncoming traffic was a funeral procession. When he had reached a point where he could see down the road to the south he observed Eubanks' truck in...