Fornea v. Crain

• Decision Date: 25 March 1955
• Docket Number: No. 3980,3980
• Citation: Fornea v. Crain, 79 So.2d 95 (La. App. 1955)
• Parties: Daniel R. FORNEA and Fidelity Mutual Insurance Company, Plaintiffs-Appellees, v. Harvey CRAIN, Defendant-Appellant.
• Court: Court of Appeal of Louisiana

Page 95

79 So.2d 95

Daniel R. FORNEA and Fidelity Mutual Insurance Company Plaintiffs-Appellees, v. Harvey CRAIN, Defendant-Appellant.

No. 3980.

Court of Appeal of Louisiana, First Circuit.

March 25, 1955.

Rehearing Denied April 22, 1955.

France W. Watts, Jr., Franklinton, for appellant.

Henry N. Richardson, Bogalusa, for appellee.

TATE, Judge.

This case results from a collision between two automobiles. The plaintiff, Daniel R. Fornea, the owner and operator of an Oldsmobile, and his collision insurer by subrogation, sue for $751.63 (of which $50 was the deductible portion of the damages paid by Fornea) to cover the damages sustained by his car. Harvey Crain, Defendant, reconvened for certain damages, but the reconventional demand was filed more than a year after the accident, and accordingly a plea of prescription thereto was sustained. Before trial, Daniel R. Fornea for himself filed a judgment of dismissal with prejudice, and therefore the only claim before this court is the subrogation claim of Fidelity Mutual Insurance Company, his insurer.

There was judgment below in plaintiff's favor as prayed for, and the defendant has appealed suspensively and devolutively.

The accident occurred on March 24, 1951, on Louisiana Highway 7 approximately two miles south of Varnado, Louisiana. The accident occurred when defendant Crain, driving his Kaiser (Henry J Model) automobile south on said highway, turned left or east across said highway, and was struck by plaintiff Fornea's Oldsmobile which had been proceeding north on said highway, approaching from the opposite direction. The reconventional demand and various exceptions having been disposed of by proper rulings of the trial court, which are not complained of here, the sole question remaining for determination is whether any negligence of defendant was the proximate cause of the damages sustained by plaintiff, and whether the negligence or contributory negligence of Fornea, the plaintiff's insured, would bar such recovery.

In substance, plaintiff seeks recovery on the ground that defendant Crain suddenly made a left turn across Fornea's path, Crain having failed to keep a proper lookout and having made a sudden turn on or across the highway in violation of the superior right of way of all vehicles approaching from either direction, LSA-R.S. 32:235. LSA-R.S. 32:237, subd. E. also provides:

'The driver of a vehicle entering a public highway from a private road or entering a private road from a public highway shall yield the right of way to all vehicles approaching on the public highway and to all pedestrians properly walking thereon.'

Defendant, on the other hand, contends that the accident was caused by the...