Gaines v. Standard Acc. Ins. Co.

• Decision Date: 21 November 1947
• Docket Number: 2941.
• Citation: 32 So.2d 633
• Court: Court of Appeal of Louisiana — District of US
• Parties: GAINES v. STANDARD ACC. INS. CO.

32 So.2d 633

GAINES v. STANDARD ACC. INS. CO.

No. 2941.

Court of Appeals of Louisiana, First Circuit

November 21, 1947

Rehearing Denied Dec. 30, 1947.

Writ of Certiorari Denied Feb. 16, 1948.

Watson Blanche, Fridge & Wilson, of Baton Rouge, for appellant.

Hamlet D. May, of Baton Rouge, for appellee.

JOSEPH, A LORET, Judge ad hoc.

This case grows out of a collision between a motorbike ridden by William Lee Gaines, a minor sometimes called Billy, and a truck owned by Milton Williams and driven by the latter's servant Payne Fletcher. Mr. Williams does business as Louisiana Sand and Gravel Company. The collision happened at night.

Mr. Williams was protected from liability for damages for injuries to persons and property resulting from the ownership, operation or maintenance of the truck by a policy issued to him by Standard Accident Insurance Company, the defendant and appellant. Liability under the policy was limited by its terms to $5,000 for personal injuries suffered by one person and $5,000 for property damage.

Mr. Gaines sued Standard Accident Insurance Company, as the insurer of Mr. Williams, for $5,000 for the use and benefit of his minor son William Lee Gaines for the latter's injuries and $5,000 for himself as damages suffered by him as a result of the accident, with legal interest from judicial demand until paid. Mr. Gaines' individual claim of $5,000 is made up of $150 damages to the motorbike, $1,725.93 which he claimed to have expended in the treatment of Billy for Billy's injuries, and $3,124.07 which he expected to have to expend in future treatment of Billy. He alleged that the future expenses of Billy's future treatment would probably amount to $3,500, but his recovery against the defendant was limited to a total of $5,000 by the policy.

The District Court rendered judgment against the defendant and in favor of Arnold Lee Gaines, individually for $1,364.94, with legal interest thereon from judicial demand until paid, and further against the defendant and in favor of the plaintiff, Arnold Lee Gaines, as administrator of his minor son's estate in the sum of $3,750, with legal interest thereon from judicial demand until paid.

From that judgment the defendant prosecutes this appeal. The plaintiff has filed an answer to the appeal, in which he prays that the judgment be increased to the full amount sued for.

The facts are gone into in detail in the excellent opinion of the District Judge, the Hon. Carlos G. Spaht, which is as follows:

'This is a suit by the plaintiff, Arnold Lee Gaines, individually for medical, hospital and other expenses, and as administrator of the estate of his minor son, William Lee Gaines, (Billy), sixteen (16) years of age, for personal injuries to said minor son resulting from an accident on the 25th of October, 1946. The accident occurred when a gravel truck owned by Milton Williams, d/b/a Louisiana Sand and Gravel Company, and being operated at the time by Payne Fletcher, his employee, in the course of his employment, collided with the motor bike on which plaintiff's minor son was riding, at the intersection of Plank Road and Winbourne Avenue in the Third Ward of this parish and state.

'The accident occurred around 11:00 P. M., while Billy was returning home on his motor bike after having attended a high school football game in the LSU stadium. He was traveling northward on the said Plank Road. This road is one of the main arteries of travel between the heavily populated area north of the City of Baton Rouge and the City of Baton Rouge. The road runs slightly northeastward and southwestward but for the purpose of this opinion the road will be described as running north and south. This road is made of a paved slab approximately eighteen (18) feet wide with a black strip running alongside the pavement on each side approximately four (4) feet in width; there is a gravel and dirt shoulder on each side of this black top strip extending to an open ditch on each side of the road and a four (4) foot paved sidewalk on the shoulder just to the east of this open ditch. Winbourne Avenue runs east and west and is a black top road the black top portion being approximately 15 feet in width.

'Billy was very seriously injured in this accident and was still in the hospital at the time of the trial five months after the accident. Plaintiff contends that Billy was proceeding in a northerly direction on his motor bike and at the speed of approximately twenty to twenty five miles an hour, on his right hand side of the road, with the headlight on his motor bike brightly burning, and that the truck driver made a sudden left turn striking his son, just as he was passing the mouth or intersection of Winbourne Avenue. Defendant, on the other hand, contends that the truck driver was not negligent because he stopped before making this left turn, gave the proper hand signal and while keeping a proper look-out, made the turn into Winbourne Avenue as he had a right to do. He further contends that the truck driver had completed his turn before the collision occurred and that the plaintiff's son was traveling northward not on the paved slab of the Plank Road but on the sidewalk which runs along the road on the shoulder approximately twenty two (22) feet eastward and parallel to the paved slab of the road. Defendant, in the alternative, contends that even if the truck driver was negligent then Billy himself was guilty of such contributory negligence as will make it impossible for the plaintiff to recover.

'After listening to the witnesses, viewing the scene of the accident and studying the exhibits this Court has concluded the accident happened as follows:

'That Billy was proceeding northward on the paved slab of the Plank Road near the eastern edge thereof, or on his right hand side of the road, at a speed of approximately twenty to twenty five miles an hour, following rather closely behind another automobile proceeding in the same direction. Fletcher, the truck driver, was, just before the accident, proceeding southward on the Plank Road, and he made a left turn into Winbourne Avenue after the car just ahead of Billy passed the intersection. After he started making his turn and shortly after the front end of his truck cleared the pavement, he struck the motor bike on the left side of the left half of his bumper and left fender and headlight. That Billy realized the truck was coming towards him was going to strike him only shortly before the collision occurred and he turned to his right to avoid the accident and thus was on the shoulder east of the pavement when struck by the left side of the said bumper and headlight of the said truck.

'The Court believes that both the testimony of the witnesses and the physical facts point to this conclusion. Fletcher testified that he stopped and waited for traffic to clear before making this left turn and that after a car passed he started making his left turn. He further testified that another car was coming behind this car approximately a block away. Billy also testified that he was following behind another car which preceded him across the mouth of this intersection. It is evident that the reason Fletcher did not see Billy on his motor bike was that he was watching the cars, their lights were much brighter and more visible than that of a motor bike would be, and furthermore, since the motor bike was following this car on the right hand side of the pavement, it would not be visible to Fletcher until the car reached the point close to the intersection, and probably not clearly discernable because of the bright headlights of the approaching car until the car had actually reached the intersection. Fletcher was anxious to make this left turn quickly to avoid the on-coming traffic, so naturally he would make the turn as quickly as possible. After the accident the truck stopped at an angle the back end just clearing the paved slab of the Plank Road with the front end just west of the west line of the extension of the sidewalk, which as heretofore described parallels the Plank Road at a distance of twenty-two (22) feet east of the said paved slab on the road. Billy lay five (5) or six (6) feet in front of the truck in the center of Winbourne Avenue and his motorbike was a little north of him and approximately the same distance from the truck. All of this appears clear from the testimony of Fletcher himself, and further from the bloodstains on the pavement, shown by the pictures, as well as the testimony of the other witnesses. Fletcher testified that he was going eight (8) to ten (10) miles an hour when he saw Billy right in front of his truck and realized that an impending accident was going to occur. He then took his foot off the accelerator and applied the brakes. He believes that all of this took a very short time and that after he saw the accident, released his foot from the accelerator, applied the brakes and stopped the truck, his truck traveled only a distance of three (3) to four (4) feet. He may be perfectly sincere in this belief, but the Court knows from personal experience as well as observation, and a study of tables prepared by insurance companies to show the distance required to bring vehicles to a stop under certain speeds that this is not possible.

'These tables indicate that under ideal conditions an automobile may be stopped in five (5) feet after the application of the brakes where the car is traveling at a speed of ten (10) miles an hour. These tables further show that where the driver is suddenly confronted with an emergency, as was Fletcher in this case, that there is a factor known as the Complex Reaction Time. This is the time required for the driver to realize the situation, make a decision and then apply the pressure of the brakes....