Fontenot v. Lafleur

• Citation: 124 So.2d 607
• Decision Date: 17 November 1960
• Docket Number: No. 96,96
• Parties: Vincent FONTENOT, Plaintiff-Appellant, v. David LAFLEUR et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana (US)

Page 607

124 So.2d 607

Vincent FONTENOT, Plaintiff-Appellant, v. David LAFLEUR et al., Defendants-Appellees.

No. 96.

Court of Appeal of Louisiana, Third Circuit.

Nov. 17, 1960.

Rehearing Denied Dec. 14, 1960.

Certiorari Denied Jan. 9, 1961.

Preston N. Aucoin, Ville Platte, for plaintiff-appellant.

Fruge & Foret, by Jack C. Fruge , Ville Platte, for defendants-appellees.

Before TATE, SAVOY and CULPEPPER, JJ.

TATE, Judge.

On February 18, 1959, a Chevrolet driven by the defendant Lafleur struck the rear of a vehicle being manually pushed on a state highway by Vincent Fontenot, who was thrust to the ground and sustained a fractured skull. By this suit Fontenot seeks to recover the damages thereby sustained from the defendant Lafleur and his liability insurer. The plaintiff appeals from judgment dismissing his suit after trial on the merits.

In our opinion the following facts found by the trial court are supported by the preponderant evidence:

The accident occurred two miles south of Ville Platte after dark, between six and seven on a February evening. Earlier, the plaintiff Fontenot had backed his car from his home driveway out onto the blacktopped state highway between Ville Platte and Chataignier, but it immediately stalled facing south in the south-bound traffic lane. He had sent for a neighbor and they, with Fontenot's young brother, had manually pushed the car approximately 300 feet down this lane of the highway when its rear was struck by the defendant Lafleur's Chevrolet.

It is undenied that the plaintiff's right tail-light was not lit and that most of the red reflector glass was missing on his left tail-light, the bulb of which however was lit; but we think that the trial court correctly found that even this illumination ¹ was not visible to oncoming traffic because the plaintiff's young brother pushing the car was standing in front of the light until a moment before the impact (when a companion alarmed by the oncoming lights pulled him to safety in the west ditch).

The defendant driver, Lafleur, had been driving southerly from Ville Platte at a speed of 35--40 mph. While approaching the scene of the accident, he had been forced to slow by the bright lights of a northbound vehicle, which failed to respond to the defendant driver's dimming of his own bright lights. As the continued onset of these bright lights blinded him, the defendant Lafleur applied his brakes, but almost simultaneously with this application he hit the rear of the plaintiff's vehicle in an impact which caused relatively slight property damage.

Under these facts, we think that the trial court correctly denied plaintiff recovery. The plaintiff's negligent failure to remove his disabled vehicle from the traveled lanes of the highway as soon as possible and especially to protect traffic approaching from his rear by adequate lights and signals was a proximate cause of this accident. Suire v. Winters, 233 La. 585, 97 So.2d 404; Dodge v. Bituminous Cas. Corp., 214 La. 1031, 39 So.2d 720; Puissegur v. Louque, La.App. 1 Cir., 113 So.2d 795; Gaines v. Hardware Mut. Cas. Co., La.App. 1 Cir., 86 So.2d 218.

As the able counsel for the appellant contends, if the admissible evidence at the trial so warrants, a plaintiff may recover under the last clear chance doctrine even though he has not specifically pleaded it. Lee v. Kastner, La.App.Orl., 69 So.2d 137; Boullion v. Bonin, La.App. 1 Cir., 2 So.2d 535; Iglesias v. Campbell, La.App. 2 Cir., 175 So. 145. 'Under the last clear chance doctrine as enunciated by Louisiana jurisprudence, a motorist who observes or who should by the exercise of reasonable care have observed another in a position of peril may be held responsible for injuries caused by an ensuing collision with the other despite any contributory negligence on the part of the latter if, after the duty to make such observation arose, the motorist could reasonably have avoided the accident.' Belshe v. Gant, 236 La. 17, 102 So.2d 477, 479.

The evidence before us does not, however, justify recovery for plaintiff upon that principle because the defendant Lafleur could not reasonably have avoided colliding with the plaintiff's darkened car subsequent to the time that he should reasonably have observed it, Franklin v. Holmon, La.App. 1 Cir., 110 So.2d 776; for a night motorist is not negligent for a failure to perceive and a consequent failure to avoid colliding with an obscured vehicle obstructing his path on the traveled portion of the highway, if such motorist could not...