Gaubert v. Ed. E. Hebert Co., Inc

• Decision Date: 09 June 1937
• Docket Number: 1714
• Citation: 174 So. 716
• Court: Court of Appeal of Louisiana — District of US
• Parties: GAUBERT v. ED. E. HEBERT CO., Inc

174 So. 716

GAUBERT v. ED. E. HEBERT CO., Inc

No. 1714

Court of Appeal of Louisiana, First Circuit.

June 9, 1937

Harvey Peltier and Hubert A. Lafargue, both of Thibodaux, for appellant.

Howell & Deramee, of Thibodaux, for appellee.

OPINION

LE BLANC, Judge.

Plaintiff, Maurice Gaubert, sustained a very severe injury to his left arm as a result of an automobile accident in which his Ford automobile which he was driving, and a truck belonging to the defendant, Ed. E. Hebert Company Incorporated, and being driven by its employee, Walter Mire were involved. The accident occurred at about 5 o'clock in the afternoon of July 16, 1935, on the paved highway which connects the towns of Thibodaux and Houma, at a point approximately three-quarters of a mile south of Thibodaux.

Claiming that the accident was caused solely and entirely through the negligence and carelessness of the driver of defendant's truck in suddenly entering and crossing the highway diagonally from in front of a gasoline filling station on the west, and without giving any signal or warning of his intention to do so, all in violation and disregard of the safety of oncoming traffic, plaintiff instituted this suit against the defendant, the truck driver's employer, to recover damages in the sum of $ 22,843.90 under the doctrine of respondeat superior. He made the necessary allegation that the truck driver was, at the time of the accident, engaged in the service of his master, and that is not a controverted issue in the case.

The damages claimed are for shock, pain, and suffering in the sum of $ 17,500; loss of work, $ 1,800, and for various items including doctors' and hospital bills, drugstore bills, and expenses incurred in traveling to and from New Orleans for treatment, the sum of $ 3,543.90.

In reciting the facts concerning the actual collision, plaintiff alleges that he was driving north towards Thibodaux in the same direction in which the truck was headed for; that the driver started the same diagonally across the highway, and carelessly and negligently ran into the left front of his car and thus caused the damage which he sustained. Defendant in its answer denies all allegations in which negligence is charged against the driver of its truck, but it particularly denies that the truck ran into plaintiff's car. It is alleged, on the contrary, that the truck had proceeded on the highway for a distance of 300 feet, traveling on its right side of the road, when the plaintiff negligently and carelessly ran into it. It is alleged that at the time the truck entered upon the highway from the gasoline filling station plaintiff's car was at a distance of approximately 1,000 feet south, and that as the highway is straight for that distance, with no obstructions, plaintiff had every opportunity of seeing the movements of the truck and of having his car under control to pass to the left where he had ample room to do so, when he sought to overtake the truck. Instead, defendant alleges, plaintiff recklessly tried to pass to the right of the truck when there was no space there for him to do so. It is further alleged in the answer that plaintiff was driving at a speed of 60 miles per hour, that he was not keeping a proper lookout, and that he lost control of his car, all of which constituted gross carelessness and negligence and in effect was the proximate cause of the accident.

The district judge handed down written reasons for judgment in which he reached the conclusion that the negligence of the truck driver in failing to apprehend the exact situation then existing, and especially in not looking a second time after he had seen plaintiff's car at an appreciable distance, before starting his truck across the highway after having turned it around, was the primary cause of the accident. He was of the opinion that plaintiff had taken proper precaution by blowing the horn of his car at a sufficient distance from the truck to give the truck driver warning of his presence on the highway and of his intention to go on ahead, and, with regard to his action in attempting to pass to the right of the truck instead of on the left, he found that, because of the emergency which presented itself, plaintiff was justified in making that choice of either of the alternatives under the emergency rule or doctrine, under which it suffices that the course followed by the automobile driver is the one which would suggest itself to a reasonably prudent and careful person as the safest, when confronted with the same danger. He awarded damages in the sum of $ 7,357.70, and from that judgment defendant has appealed. Plaintiff has answered the appeal, asking for an increase of $ 5,000 in the amount of the award.

The weather was clear on the day of the accident, and at 5 o'clock of the afternoon in the month of July we know that it is still more than two hours before dusk.

The defendant company is engaged in the wholesale grocery business, and its truck was at the time delivering groceries at the store of Clement Durocher. A gasoline filling station is operated in connection with the store. As already stated, the store and station are situated approximately three-quarters of a mile south of Thibodaux, on the west side of the highway, and about 15 feet from the paved portion of the highway.

The truck had been driven inside a roadway or passageway on the south side of the store, the front end facing west or away from the highway, and the groceries were unloaded from a side door of the truck which was then next to the store. After the delivery had been made, as the driver intended to go back to Thibodaux, it was necessary for him to back his truck onto the gravelled surface in front of the gasoline filling station and head it north. This, the truck driver, Walter Mire, says, is exactly what he did. He explains further, however, that as the tarpaulin covering on the back of the truck obstructed his rear view when backing the truck to turn it in this manner, while seated in the driver's seat, he stood on the running board and handled the steering wheel from that position, while doing so, in order to get a better view in the back and to the side.

The way in which we understand his testimony, it was after he had backed the truck and turned it around that Mire says he saw plaintiff's car approximately 300 yards south of Durocher's store. In this we think he is mistaken and that what he meant was that it was while he was in the act of backing that he saw the car that distance away. It seems to be conceded on plaintiff's side that he was traveling at a speed of not less than 45 miles an hour, and consequently he was advancing 66 feet per second. Assuming that it took five seconds, which seems reasonable, for Mire to back and turn the truck, plaintiff's car would have traveled 330 feet during that interval, and that would then have placed it over 1,200 feet from the filling station while the truck was being turned. There is nothing in the record to suggest such distance. We say, therefore, that probably Mire meant that it was as he looked back, while in the act of backing the truck that plaintiff was about 300 yards or 900 feet south of him, and that he...