Guilbeau v. Calzada, 4018

• Court: Court of Appeal of Louisiana (US)
• Writing for the Court: SWIFT; PER CURIAM
• Citation: 240 So.2d 104
• Parties: Mrs. Gloria GUILBEAU, for Herself and as Natural Tutrix of the Minors Van Guilbeau and Wanda Guilbeau, Edward Guilbeau, Kenneth Guilbeau, Mrs. Aloma G. Brunet, and Mrs. Betty Guilbeau v. Charles CALZADA.
• Docket Number: No. 4018,4018
• Decision Date: 05 October 1970

Page 104

240 So.2d 104 Mrs. Gloria GUILBEAU, for Herself and as Natural Tutrix of
the Minors Van Guilbeau and Wanda Guilbeau, Edward
Guilbeau, Kenneth Guilbeau, Mrs. Aloma
G. Brunet, and Mrs. Betty Guilbeau
v.
Charles CALZADA. No. 4018. Court of Appeal of Louisiana, Fourth Circuit. Oct. 5, 1970.
Rehearing Denied Nov. 2, 1970.

Page 105

Robert I. Broussard, Gretna, and Hugh G. Oliver, Westwego, for plaintiffs-appellants.

Campoy, Hurley & Senter, Joe L. Horne, New Orleans, for defendant-appellee.

Before REDMANN, BARNETTE and SWIFT, JJ.

SWIFT, Judge.

This suit arose from a collision of two motorboats which occurred around 5:00 P.M. on May 19, 1968, on Bayou Segnette, near Westwego, Louisiana.

Page 106

Andrew Eddie Guilbeau, Sr., owner and operator of one of the boats, lost his life by drowning as a consequence of the accident. His widow, Gloria Guilbeau, and their six children have sued for damages resulting from his death. Mrs. Guilbeau, two of her children and her daughter-in-law, who were passengers in the boat, also seek to recover damages for their own personal injuries.

Following a trial on the merits, the trial judge concluded that both boat operators were guilty of negligence and denied recovery in the death action. However, in the personal injury actions judgments were awarded the plaintiffs in the following amounts: $606.10 to Gloria Guilbeau; $250.00 to Gloria Guilbeau as natural tutrix of Van Guilbeau; $358.75 to Betty Broussard Guilbeau; and $756.50 to Kenneth Guilbeau. The reconventional demand of Charles Calzada was dismissed.

From this judgment plaintiffs have appealed, assigning as the principal error the trial judge's conclusion that Andrew Guilbeau was guilty of negligence that was a proximate cause of the accident. The defendant has answered the appeal.

Involved in the collision were a 22-foot fiberglass boat powered by a 155 horsepower Buick marine engine, owned and operated by Charles Calzada, that was moving down the bayou away from Westwego, and a 17-foot 'Lafitte Skiff' powered by a Ford automobile engine, owned and operated by decedent, Andrew Guilbeau, Sr., which was travelling toward Westwego. The record shows that Calzada had purchased the boat in April, 1968, from North American Boat Corporation and had operated it in the area of the accident only a few times. He was an experienced boatman, however, and was fully familiar with this general area. Andrew Guilbeau constructed his boat with the help of a friend, and the first occasion he used it was on the day of the accident.

Passengers in the Guilbeau boat at the time of the collision were: Mrs. Gloria Guilbeau, Van Guilbeau, Kenneth Guilbeau and the latter's wife, Betty Broussard Guilbeau.

Charles Calzada was accompanied by Donald Calzada, his brother, their two sons, Joseph Calzada, his father, and Ivy Ehret, a brother-in-law.

Bayou Segnette is a narrow, winding channel connecting the boat launch at Westwego with Lake Cataouatche. Photographs offered in evidence disclose that the channel makes practically a 90 degree turn at the place where the accident occurred called 'Yankee Camp.' Trees and foliage obstruct the view so that approaching boatmen cannot see around the bend, which turns to the left in the direction the Calzada boat was moving.

Of the Guilbeau passengers only Kenneth Guilbeau was able to testify with any degree of specificity with regard to the manner of the accident's occurrence. He said that prior to the collision his father operated the boat on the right side of the channel and moved generally in the direction of Westwego. He further testified he observed the defendant's boat approaching in the middle of the channel and swerving toward the east bank just prior to the accident . The other boat was only about 20 or 25 feet away when he first saw it.

William Nealy, 75 years of age, was called as a witness by plaintiffs. He was trying to start the outboard motor on his boat about 15 or 20 feet from the west bank of the waterway and almost directly across from where the collision occurred. Nealy testified he heard the noise of defendant's engine before he saw the boat. Shortly before the impact the defendant was travelling in the middle of the waterway at an estimated speed of about 25 or 30 miles per hour. According to Nealy, defendant veered sharply to the left on seeing the approaching Guilbeau boat. He said Guilbeau made no sudden turns before impact, but rather travelled in a straight path about 30 feet from the east bank at a speed from five to seven miles per hour. Nealy saw

Page 107

only the boats involved in the collision, and that of his brother-in-law, C. J. Fontenot, located at the edge of a dredged area of the east bank of the channel. He did not see any boat following the Lafitte skiff.

C. J. Fontenot, brother-in-law of Mr. Nealy, testified he began fishing near the west bank of Bayou Segnette, but later moved his boat to a cut or dredged area in the east bank of the bayou. Shortly after arriving in the cut Fontenot noticed Nealy having difficulty starting his outboard motor, and started to return to the west bank to assist him when he heard the noise of the approaching boats. Defendant approached Fontenot from the right, travelling in the middle of the waterway at a high rate of speed. Fontenot related that the Guilbeau boat approached from his left, travelling near the east bank of the waterway at a speed of about five to ten miles per hour. Calzada, according to Fontenot, made a sharp turn toward the east bank, crossing the path travelled by Guilbeau, who did not change his speed or direction of travel prior to the accident.

Carl Jervis who was called as a witness for defendant, testified that he followed approximately one-half block to 300 feet behind the Guilbeau boat for about five or ten minutes at a speed of about 30 miles per hour. He was aware of the speed because the boat he was operating was equipped with a rather accurate speedometer. However, he said they gained a 'little bit, gradually' on the Lafitte skiff. Both boats were about in the middle, or slightly to the right, of the channel. According to this witness' version of the accident, defendant came around the turn about in the middle of the waterway, but on seeing the approaching boat, reduced his speed and made a controlled left turn toward the east bank. Guilbeau also turned toward the east bank, but only after Calzada had already begun his turn. The boats collided near the channel's east bank.

Jervis' account of the accident was corroborated in most respects by Mr. and Mrs. Melvin Odenwald, his brother-in-law and sister, who accompanied him in the boat.

Charles Calzada testified that he had attended the Lafitte Pirogue races on the morning of May 19, 1968, and on arriving at Westwego met his father and brother-in-law whom he offered to carry to a fishing camp. Approaching the site of the accident, Calzada operated his boat generally in the center of the channel at a speed of about 20 miles...