Evans v. Thorpe

• Decision Date: 28 April 1965
• Docket Number: No. 10371,10371
• Citation: Evans v. Thorpe, 175 So.2d 418 (La. App. 1965)
• Parties: Richard B. EVANS, Plaintiff-Appellee, v. Clyde Thomas THORPE et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana

Page 418

175 So.2d 418

Richard B. EVANS, Plaintiff-Appellee, v. Clyde Thomas THORPE et al., Defendants-Appellants.

No. 10371.

Court of Appeal of Louisiana, Second Circuit.

April 28, 1965.

Rehearing Denied May 21, 1965.

Blanchard, Walker, O'Quin & Roberts, Shreveport, for Clyde Thomas Thorpe and Phoenix Ins. Co., defendants-appellants.

Emmons & Henry, Jonesboro, for plaintiff-appellee.

Before HARDY, GLADNEY, and AYRES, JJ.

AYRES, Judge.

This action in tort arose out of an automobile accident of August 4, 1963, on State Highway 9, known locally as the Summerfield-Johnson City Highway. Involved were plaintiff's 1958 model Chevrolet sedan and defendant Thorpe's 1962 Chevrolet sedan. Made a defendant in addition to Thorpe was his public liability insurer, The Phoenix Insurance Company.

This is a companion case to that of Evans et al. v. Phoenix Insurance Company et al., bearing No. 10370 of the docket of this court (175 So.2d 425), which arose out of the same accident and with which it was consolidated for trial.

Upon the basis of a conclusion that both Thorpe and Evans, drivers of the vehicles involved, were guilty of negligence, but that Thorpe had the last clear chance to avoid the accident, there was judgment in favor of plaintiff against Thorpe and his insurer, in solido, for $3,000.00 for the injuries sustained, plus $658.37 in special damages. From this judgment, defendants appealed.

A brief review of the facts concerning the occurrence of the accident is deemed appropriate to a discussion and resolution of the issues presented for determination. The accident occurred about 12:30 p.m. The weather was clear, the roadway dry, and no unusual physical or atmospheric conditions existed to obscure the motorists' view. The highway, a 2-lane blacktop road, approximately 20 feet wide, straight and level for a considerable distance in both directions from the scene of the collision, was intersected near that point by a gravel road which formed a dead-end or 'T' intersection as it joined the south side of the highway. Prior to the collision, both vehicles were proceeding westerly on the asphalt road. The accident occurred as Thorpe attempted a passing movement.

Inattention to their driving, not maintaining a proper lookout, and failure to keep their vehicles under control were charges of negligence directed to both drivers. Thorpe was further charged with negligence in attempting a passing movement without notice or warning to the forward car, at an intersection, and when the way was not clear, despite Evans' signal of an intention to execute a left turn, and in failing to take any action to avoid an accident when, had he been keeping a proper lookout, he would have had time and opportunity to avoid the accident. Failure to give a signal indicative of an intention to make a left turn and the attempt to execute such a maneuver when he saw, or should have seen, that it could not be made in safety were charges directed to Evans. In addition, he was charged, in the aforesaid particulars, with contributory negligence.

Each of the parties litigant contends that the driver for whose conduct it is responsible was free of negligence. Appellants Thorpe and The Phoenix Insurance Company contend, also, that Thorpe did not have the last clear chance of avoiding the accident, and, finally, that the amounts awarded plaintiffs were excessive.

Attention shall first be given to the charges of negligence as they relate to plaintiff, Evans. On approaching the road into which he intended to turn, Evans reduced his speed from 60 or 65 m.p.h. to 35 m.p.h. While there is some controversy as to whether the turned on his blinker lights to indicate the intended turn, we are convinced that he did so; Evans so testified. Thorpe, in this connection, testified that he did not know whether the light was a blinker light or a brake light, but admitted that he saw a nonblinking light on the left rear of the Evans vehicle.

Prior to his attempted turn, Evans had observed, from a considerable distance to his rear, the approach of the Thorpe automobile. However, he made no further observation to ascertain the position of the following car on the highway or the distance at which it was trailing. Nevertheless, without looking to the rear as he approached the intersection, Evans began the turning movement despite a warning from his mother and nieces, his guest passengers, to the effect that the Thorpe automobile was approaching and was near at hand. Evans seemingly contented himself with and relied upon his blinker signals. His reply to the warning was that he had his blinker lights on and that the driver of the approaching car would stop. Therefore, he proceeded with the turning movement and, when the front of his car extended approximately two feet across the center line of the highway, it was struck on its left rear side by the right front of the Thorpe vehicle. Clearly, Evans was not keeping or maintaining a proper lookout.

The rule is well settled in the jurisprudence of this State that a motorist intending to make a left turn on a public highway must ascertain, before attempting to do so, that the movement can be made in safety. Johnson v. Wilson, 239 La. 390, 118 So.2d 450 (1960); Washington Fire & Marine Ins. Co. v. Firemen's Ins. Co., 232 La. 379, 94 So.2d 295 (1957); Leonard v. Holmes & Barnes, Ltd., 232 La. 229, 94 So.2d 241 (1957); LeBrun v. American Paper Mfg. Co., 41 So.2d 94, La.App., Orleans 1949.

Another rule equally well established and having application to the situation presented here is that a motorist intending to make a left turn must not be content with merely giving a signal indicative of his intent but he must look before turning to ascertain if such movement can he made with reasonable certainty. Johnson v. Wilson, supra; Moorehouse v. Gallow, 156 So.2d 62, La.App., 1st Cir. 1963; Crane v. London, 152 So.2d 631, La.App., 2d Cir., 1963; Guidry v. United States Casualty Co., 134 So.2d 319, La.App., 3d Cir. 1961; Johnson v. Southern Farm Bureau Casualty Ins. Co., 124 So.2d 331, La.App., 3d Cir. 1960; Jenkins v. Fidelity and Casualty Co., 92 So.2d 120, La.App., 1st Cir. 1957. Thus, it is not enough that the driver intending to make a left turn signify such intention by the appropriate signal; he is under a duty to look to his rear just before attempting the turn in order that he may be sure the turn can be made in safety. Washington Fire & Marine Ins. Co. v. Firemen's Ins. Co., supra; Bellard v. Texas Services, Inc., 151 So.2d 694, La.App., 3d Cir. 1963.

Moreover, the importance of a strict observance of the aforesaid principles has been emphasized on numerous occasions by pronouncements that the law places a responsibility upon a motorist desiring to make a left turn to ascertain before doing so that such movement can be made in safety and without danger or undue delay to either overtaking or oncoming traffic and that the motorist must refrain from such a maneuver unless the way is clear. When, however, such a left turn is attempted and an accident occurs, it has been held that the burden rests heavily on the motorist making the turn to establish his freedom from fault. Washington Fire & Marine Ins. Co. v. Firemen's Ins. Co., supra; Desormeaux v. Continental Insurance Company, 153 So.2d 128, La.App., 3d Cir. 1963; Codifer v. Occhipinti, 57 So.2d 697, La.App., Orleans 1952.

Evans clearly violated the aforesaid cardinal rules of the road, as a result of which the accident occurred. His negligence is therefore manifest.

In passing to the question of negligence directed to defendant Thorpe, the driver of the overtaking vehicle, it may be appropriate to first point out that the statutory rule is that

'* * * the driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance, and shall not again drive to the right side of the roadway until safety clear of the overtaken vehicle.' LSA-R.S. 32:73.

Nor, the statute further provides, shall a vehicle be driven to the left of the center of the highway in overtaking and passing another vehicle proceeding in the same direction unless the left traffic lane is clearly visible and is free of oncoming traffic for a sufficient distance to permit completion of the passing movement without interference with the safe operation of any vehicle met or overtaken. LSA-R.S. 32:75.

Thorpe's testimony was evasive, indefinite, and unconvincing. Nevertheless, certain important facts, we think, were established by a preponderance of the evidence. Thorpe, on seeing the light on the left rear of the Evans vehicle, applied his brakes and skidded his car a distance of 95 feet. After observing the light indicative of a left turn, a reaction time, normally considered as three-fourths of a second, elapsed before Thorpe applied his brakes. During that interval, at a speed of 60 m.p.h., a vehicle would travel 66 feet. Thus, when Thorpe saw Evans' signal, he was probably, at least, 160 feet distant, and, according to his own testimony, he was traveling 55--60 m.p.h.

Moreover, as already observed, the surface of the highway was at least 20 feet wide. The south...