Graham v. Edwards

• Decision Date: 24 February 1993
• Docket Number: No. 24,450-CA,24,450-CA
• Citation: Graham v. Edwards, 614 So.2d 811 (La. App. 1993)
• Parties: Vernon GRAHAM, Plaintiff-Appellant, v. Henry EDWARDS, Jr., Caddo Parish School Board and their Unknown Insurer, Defendants-Appellees.
• Court: Court of Appeal of Louisiana

Page 811

614 So.2d 811

Vernon GRAHAM, Plaintiff-Appellant, v. Henry EDWARDS, Jr., Caddo Parish School Board and their Unknown Insurer, Defendants-Appellees.

No. 24,450-CA.

Court of Appeal of Louisiana Second Circuit.

Feb. 24, 1993.

Rehearing denied March 25, 1993.

Davis & Singleton by S.P. Davis, Shreveport, for plaintiff-appellant.

Rountree, Cox & Guin by Dale G. Cox, Shreveport, for defendants-appellees.

Before SEXTON, BROWN and STEWART, JJ.

STEWART, Judge.

Vernon Graham sued Henry Edwards and his employer, the Caddo Parish School Board, and their insurer, United Community Insurance Company for personal injuries and property damage sustained as a result of a vehicular accident. Graham alleged that the accident was caused by Edwards' negligence while operating the Caddo Parish School Board's tractor. After a bench trial, the court found Graham 30 percent negligent, Edwards 50 percent negligent, and Audry Washington, a flagman employed by L.J. Earnest Construction Company, Inc., 20 percent negligent in causing the accident. Neither Washington nor L.J. Earnest Construction Company were sued by either party.

The trial court awarded Graham damages plus costs in the following amounts: general damages for pain, suffering and mental anguish, $2,250; medical expenses, $910; prescription medications, $43.39; property damage, $1,131.63; lost wages, $1,534.74, which totals $5,870. These amounts were awarded subject to the reduction for comparative negligence. The trial court also ordered costs to be paid as follows: 30 percent by Graham and 70 percent by defendants.

Graham appeals the trial court judgment alleging that the evidence necessitates an increase in Edwards' percentage of fault as well as the award of general damages.

Defendants answer the appeal contending that the trial court erred in failing to allocate any fault to L.J. Earnest Construction Company, Washington's employer. Defendants also contend that the trial court should have allocated a greater percentage of fault to Graham and Washington. Defendants further allege that the trial court erred in failing to reduce the claim for lost wages by the amount of rent Graham paid to operate his business. We affirm in part, reverse in part, and render.

FACTS

On August 15, 1990 at approximately 3:00 p.m. on a clear day, Graham was driving his 1986 Chevrolet Camaro westbound in the inside or left lane on Hollywood Avenue in Shreveport, Louisiana. Edwards was also driving westerly but on a tractor while pulling a bushhog in the right outside lane. He had used the tractor and bushhog to cut grass for his employer, the Caddo Parish School Board. This area of Hollywood Avenue was undergoing construction for I-49 and a flagman, Audry Washington, was using a red flag to direct traffic into the left, inside lane because of the construction. The record reflects that motorists proceeding westbound from Southern Avenue would have seen an orange construction sign which indicated construction was going on in the right lane.

Graham testified that, as he turned off of Southern Avenue onto Hollywood Avenue, he observed a construction sign which said that the right lane was closed ahead. Upon seeing the sign, he moved into the left, inside lane of travel. While proceeding on Hollywood Avenue in the left lane, Graham observed the tractor and about five cars behind it in the right, outside lane. Graham noted that the tractor was driving very slowly and had cars backed up behind it. Graham drove ahead at approximately 20 to 25 mph and gradually neared the side of the tractor. Approximately 300 to 400 yards away, near St. Vincent Avenue, Graham observed the flagman waiving his red flag at traffic in the right, outside lane to move over into the left lane, due to the right lane's closure. According to Graham, as he proceeded up to the viaduct, his vehicle was slightly behind the tractor when he noticed the tractor coming over into his lane. As the tractor entered his lane, Graham stepped on his brakes, blew his horn, and tried to get closer to the viaduct on his left side, however, the impact from the tractor caused Graham's vehicle to strike the viaduct. The primary damage occurred to his vehicle's passenger door and front right fender. Graham testified that, but for the viaduct, he could have avoided the accident by pulling his vehicle far to his left. Graham further testified that he never saw any turn signal on the tractor or any other indication that Edwards was about to move over into his lane.

Edwards testified that he was traveling in the right lane on the tractor pulling the bushhog at approximately five miles per hour. Maximum speed on the tractor was twenty miles per hour. He acknowledged having seen a construction sign as he crossed Southern Avenue, however, he denied that he saw any sign indicating that the right lane was closed ahead. Edwards testified that as he continued toward the west side of the viaduct, he observed the flagman with two, red flags--one in each hand. According to Edwards, when the flagman puts down two flags, that means to stop, however, he saw Washington waive one flag to his left indicating for him to go to the left lane. Edwards testified that he immediately put on his left turn signal and entered into the left lane. As he put on his left turn signal, he looked back over his left shoulder and over the bushhog and saw no vehicle in the left lane. He stated that, in addition to the activated turn signal, he had his left hand out indicating the lane change. Upon impact with the Graham vehicle, the tractor and bushhog were all the way over into the left lane, according to Edwards. He admitted that impact occurred in the left lane but said that, when Graham hit the viaduct, Graham's vehicle then bounced back against his tractor. He denied forcing Graham over. Edwards estimated that Graham was going approximately 30 miles per hour upon impact. There was no damage to the tractor or bushhog.

The only eyewitness to the accident was Audry Washington, an employee of L.J. Earnest Construction Company, Inc. It is not disputed that Washington was acting in the course and scope of his employment on the day of the accident. Washington testified that, on the day in question, it was clear and sunny. At approximately 3:00 p.m., he was standing on the St. Vincent Avenue side of the viaduct with a red flag. His duties were to flag traffic out of the right lane into the left lane because the right lane was closed due to construction. Washington testified that he had only one red flag and that was in his right hand. Washington had on an orange vest and was standing in the right lane waiving traffic into the left lane. At his trial deposition, Washington described how the accident happened thusly:

BY MR. DAVIS:

Q You could clearly see--

A Right.

Q --the tractor?

A I could.

Q In your opinion, could the tractor driver clearly see you?

A Yeah, he could see me.

Q Okay. And you continuously waived your flag to get him out of the way?

A That's correct.

Q Okay. And did he get over as you were waiving?

A He got--when he did get over, that's when he had hit the car.

Q Okay. And before we get to that point, prior to the tractor getting over, Mr. Washington, do you recall ever seeing any flashing lights on the tractor blink--

A No.

Q --before the accident?

A No.

Q Did you ever recall seeing the tractor with its turn signal on, signaling for a turn from the right lane to the left lane before the accident?

A No, I didn't. I didn't.

Q Okay. Would you tell and state for the record, Mr. Washington, exactly how the accident happened as you saw it that day?

A Okay. Well, like I was saying, I was flagging the traffic over. And the guy that was on the tractor, he kept coming. And I just said, "Hey, get over. Get over." You know, just, you know, doing like this here. (Indicating)

Q Okay.

A And he just got over, you know. And being on a tractor, you know, all he had to do was look, but he didn't look. He just come on over.

Q He just came on over?

A That's right.

Q Okay.

A And he come over on the car. And the car, he couldn't get over because he was up against the concrete like--the pillow, whatever it is, the wall and stuff there.

Q Okay. So at the time that the tractor came over into the red car, was the red car on his side at that point?

A Right.

Q And did you see the driver of the tractor look to his left at any time before the accident?

A No. He just got over.

Q Okay.

A That's all he did. And the guy in the car, he blew his horn, you know, when he saw him coming over.

Q Okay.

A But there was nothing that he could do after that.

Q If the tractor driver had of looked to his left before turning left, would he have seen the red car?

MR. COX: Again, I am going to object to this witness speculating on what the tractor driver would have seen. But subject to that objection, go ahead and answer.

BY MR. DAVIS:

Q If the tractor driver had looked to his left before turning left, would he have seen the red car?

A Yes, he would have.

Q Okay. And which lane of traffic, Mr. Washington, did the accident take place in?

A Okay.

Q Did it take place in the right lane where the tractor was, or in the left lane--

A Left lane.

Q --where the red car was?

A It was in the left lane.

No evidence was adduced from employees of L.J. Earnest Construction, or any other witness, regarding the nature of its construction work and the impact of such work on traffic signing requirements for the roadway. The investigating police officer merely testified that he had no recollection of any merge or construction signs. Defendants' answer to the appeal is devoid of any allegation against Earnest that its signing and procedures were defective.

LAW

Allocation of fault is a factual finding which an appellate court does not disturb unless, upon articulated and detailed analysis and reasons, that finding is demonstrated to be clearly wrong. Anderson v. Bennett Wood...