Fontenot v. Pan Am. Fire & Cas. Co., 2270

• Decision Date: 27 March 1968
• Docket Number: No. 2270,2270
• Citation: 209 So.2d 105
• Parties: Teovic FONTENOT, etc., et al., Plaintiff and Appellant, v. PAN AMERICAN FIRE & CASUALTY COMPANY et al., Defendant and Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 105

209 So.2d 105

Teovic FONTENOT, etc., et al., Plaintiff and Appellant, v. PAN AMERICAN FIRE & CASUALTY COMPANY et al., Defendant and Appellee.

No. 2270.

Court of Appeal of Louisiana, Third Circuit.

March 27, 1968.

Rehearing Denied May 2, 1968.

Writ Refused June 21, 1968.

Cormie & Morgan, by Robert E. Morgan, Lake Charles, for plaintiff-appellant.

Plauche & Plauche , by Allen L. Smith, Jr., Hall, Raggio, Farrar & Barnett, by Louis D. Bufkin, Lake Charles, for defendant-appellee.

Before CULPEPPER, SAVOY and LEAR, JJ.

CULPEPPER, Judge.

This is a suit for damages for personal injuries arising out of an automobile accident. The plaintiff, Teovic Fontenot, sues individually and on behalf of his minor daughters, Patricia, the driver of one of the vehicles, and Sheila, a passenger therein. Named as defendants are Wanda Petroleum Company, owner of the other vehicle, and its liability insurer, Pan American Fire & Casualty Company. The defendants filed a third party demand against Traders & General Insurance Company, the liability insurer of plaintiff's automobile, for contribution in the amount of one-half on any judgment rendered in favor of plaintiff and against the defendants.

The case was tried before a jury, which found no negligence on the part of the driver of the truck owned by the defendant, Wanda Petroleum Company. Hence, the jury made no finding as to whether the driver of the Fontenot automobile was also negligent. The lower court judgment dismissed both the principal demand and the third party demand. Only the plaintiff has appealed.

As regards negligence, the substantial issues on appeal are: (1) was the driver of the truck owned by Wanda Petroleum Company negligent in passing the Fontenot vehicle at an intersection and (2) was Patricia Fontenot contributorily negligent in making a left turn at a time when it was not safe to do so.

The scene of the accident is at the intersection of U.S. Highway 190 and 15th Street in the city of Kinder, Louisiana. At this location Highway 190 is a two-lane, two-way thoroughfare running east and west and entering the city from the east. 15th Street is blacktopped and enters Highway 190 from the south, forming a 'T' intersection. The speed limit on Highway 190 is 60 mph outside the city. It reduces to 45 mph in the area of this intersection and to 35 mph a short distance to the west thereof .

The version of the accident given by Patricia Fontenot and her sister, Sheila, is that they had been to a dressmaker east of town and were returning west on Highway 190 en route to their home, which is located on 15th Street. Patricia saw defendant's large truck and tank trailer in her rear view mirror, even before she entered the city limits of Kinder. She said it was following her very close. On reaching the 45 mph speed zone she slowed. When within a block of the intersection she slowed more and turned on her left turn signal light. At this point defendant's truck was following only about 7 feet behind, but was still in its own lane of traffic. On reaching a point about 10 yards from the intersection she again looked in her rear view mirror and saw the truck was right behind her in the passing lane. The truck then appeared to try to cut back into its own lane and hit the left rear of the Fontenot automobile. Patricia and her passenger testified they never actually started the execution of a left turn, never crossed the center line of the highway, and were still in the westbound lane of traffic when struck by defendant's truck.

This version of the accident was substantially corroborated by plaintiff's witness, Mr. Oreleis Adrepont, who was following defendant's truck. He saw the truck attempting to pass the car. Then suddenly, because of an oncoming vehicle, the truck swung back to its right and struck the car.

Defendant's truck driver died before the trial and hence was unavailable to testify. Defendant's only witness as to the cause of the accident was Mr. Curley LaFleur, City Marshall of Kinder, who arrived at the scene 30 or 40 minutes after the collision. He found defendant's truck on the south shoulder of Highway 190, with its rear end about at the ditch along the west side of 15th Street; the right front of the truck was jammed up against the left side of the Fontenot vehicle, which was located partially in the eastbound lane of Highway 190 and partially on the south shoulder; skid marks led from the back of the truck in a northeasterly direction a distance of 132 feet to the center of the highway. Dirt and debris was scattered generally along the path of the skid marks left by defendant's truck. In further locating the origin of the skid marks, LaFleur said there was a private driveway leading off of Highway 190 to the north, about 25 feet east of 15th Street. The skid marks started east of this driveway and in about in the center of Highway 190.

One of the most seriously contested issues in the case is the admissibility of testimony by LaFleur as to statements made by defendant's truck driver at the scene. Defendants contend these statements are admissible as part of the res gestae. Plaintiff objected strenuously that these statements are hearsay and are not admissible as res gestae because they were made about 40 minutes after the accident occurred. The trial judge overruled the objection and allowed LaFleur to testify that defendant's truck driver stated he thought the Fontenot girl was going to turn right (apparently into the private driveway), but that when he started to pass, she suddenly turned left into his path.

We agree with the plaintiff that these statements by defendant's truck driver were not part of the res gestae. The statements were made about 40 minutes after the accident. There had been ample time for the truck driver to deliberate and consider the effect of his statements. The evidence does not show the statements were made in a moment of tenseness or under circumstances which would reasonably preclude the possibility of design, deliberation and fabrication. Donaldson v. Riddling's Succession, La.App., 145 So. 804; Holland v. Owners' Automobile Insurance Company, La.App., 155 So. 780; Micheli v. Toye Bros. Yellow Cab Company et al., La.App., 174 So.2d 168; Larocca v. Ofrias, 231 La. 292, 91 So.2d 351; and W. H. Hodges & Company v. Wood, 230 La. 525, 89 So.2d 60.

However, disregarding the objectionable hearsay statements, the evidence is sufficient for us to find the facts. The physical evidence, as set forth in the uncontradicted testimony of Mr. LaFleur and as shown by the pictures of the damaged automobile, indicates that the Fontenot vehicle had commenced a left turn and was struck in the passing lane. The skid marks began near the center of Highway 190 and ran in a southwesterly direction, entirely in the passing lane, to the south shoulder where the truck stopped. Dirt and debris was scattered along these skid marks. The photographs show the Fontenot vehicle was struck about at the center of its left side. Patricia Fontenot testified they were struck when they were about 10 yards from the intersection. At this point the truck's skid marks were well within the passing lane. These facts can lead to no other conclusion but that Patricia had started her left turn and crossed the center of Highway 190, into the passing lane, at the time of the collision.

Under this finding of fact as to the way in which the accident happened, the first issue is whether defendant's truck driver was negligent in passing at an intersection. The question here is whether this particular road junction constituted an intersection within the intendment of LSA-R.S. 32:76, which provides in pertinent part:

'A. No vehicle shall at any time be driven to the left side of the highway under the following conditions:

* * *

* * *

'(2) when approaching within one hundred feet of or traversing any intersection or railroad grade crossing;'

LSA-R.S. 32:1(19) defines 'intersection' in part as follows:

'(a) The area embraced within the prolongation or connection of the lateral curb lines, or, if none, then the lateral boundary lines of the roadways of two highways which join one another * * *.'

LSA-R.S. 32:1(44) defines 'roadway' as that portion of a highway which is used for vehicular traffic. LSA-R.S. 32:1(17) defines 'highway' as the entire width 'of every way or place of whatever nature publicly maintained and open to the use of the public for the purpose of vehicular travel * * *.'

Thus, under a literal reading of the statutory provisions, the junction of any roads, streets or highways which are publicly maintained and open to use by the public constitutes an intersection . The statutes make no distinction, but the courts have done so. A considerable line of jurisprudence holds that some highway junctions are not 'intersections'. The facts of each case must be examined. Circumstances considered include the character and appearance of the junction, the width and type of each of the intersecting thoroughfares and the presence of absence of any signs or markings.

There are many cases holding the junction of a hard surfaced state highway with a narrow, unmarked, gravel or dirt road does not constitute an intersection, within the meaning of the statute. Ardoin v. Chachere, 207 So.2d 574 (La.App.3rd Cir. 1968) involved the junction of a hard surfaced state highway with an unmarked gravel road 15 to 20 feet in width. United States Fidelity & Guaranty Company v. Duet, 177 So.2d 302 (La.App.1st Cir. 1965) considered a narrow, unmarked lane, entering a hard surfaced state highway. Crane v. London, 152 So.2d 631 (La.App.2nd Cir. 1963) involved the intersection of U.S. Highway 84 with a narrow, unmarked dirt road in a rural area. See also Sonnier v. Great American Insurance Company et al., 134 So.2d 363 (La.App.3rd Cir. 1961); Davis v. Southern Farm Bureau Casualty Insurance Company, 134 So.2d 366 (La.App.3rd Cir. 1961); Babineaux v. Sims, La.App., 111 So.2d 848; ...