Guillory v. Farmers Auto. Ins. Co.
| Decision Date | 25 April 1960 |
| Docket Number | No. 5003,5003 |
| Citation | 120 So.2d 84 |
| Parties | Oledaus GUILLORY, Jr. v. FARMERS AUTOMOBILE INSURANCE COMPANY et al. |
| Court | Court of Appeal of Louisiana — District of US |
Tate & Tate, Mamou, for appellant.
Dubuisson & Dubuisson, Opelousas, for appellee.
This is a tort suit for personal injuries and property damage brought by Oledaus Guillory, Jr., against Farmers Automobile Insurance Company, the liability insurer of an automobile owned by Eugene C. Hagerman. The petition recites that the accident, subject of this lawsuit, occurred solely through the negligence of the operator of the Hagerman car and the operator of another vehicle approaching from the opposite direction in which the plaintiff was traveling, one Bertile Manuel. However, the prayer of the petition does not join the operator of the Hagerman vehicle, Robert L. Thomas, but only Manuel and the insurer of the Hagerman vehicle. The suit as to Manuel, on motion of the plaintiff, was dismissed, leaving as the only defendant herein Farmers Automobile Insurance Company.
The lower court dismissed plaintiff's suit and this appeal was entered.
This accident occurred in the early morning hours of March 30, 1958, in Evangeline Parish. The plaintiff was driving an automobile in an easterly direction on Louisiana Highway No. 10. Just prior to the accident the speed of plaintiff's automobile was approximately 55 miles per hour. At the same time an automobile owned by one Hagerman and operated by Robert L. Thomas was parked partially on the south shoulder of the highway and partially on its paved section in the eastbound or the traffic lane of the plaintiff. The rear of this automobile was projecting on to the highway about 3 or 4 feet and this Hagerman car was headed in a southerly direction. About the same time an automobile headed west approached the parked vehicle, and the evidence discloses that this vehicle, driven by Bertile Manuel, was slightly east of the parked Hagerman vehicle. The plaintiff's car struck the parked vehicle, glanced off and struck the Manuel vehicle.
The highway at the situs of the accident is a regular 20 foot wide two lane, concrete surfaced roadway, with shoulders some 9 feet wide. The road is straight and level; the weather was clear and dry.
There is some evidence that another automobile was stopped slightly west of the car operated by Thomas, but this car, if it was there, was driven away from the scene and its driver was never located. The evidence as to this car being present will be discussed later.
There is no doubt but there was negligence on the part of Thomas. He was using the Hagerman automobile to take his girl friend home. They had been at a night club some short distance from the scene of the accident. Thomas attempted to start the engine of the car but could not do so and with the aid of several friends this car was pushed along the highway in a westerly direction and finally the motor started. Thomas rant he motor for some 5 minutes and being under the impression it would continue running he began to turn the car around in order to travel back in an easterly direction on the highway. In doing so he brought the vehicle he was driving across the paved portion of the highway and when he reached a ditch on the south side, a short distance off the paved portion, he brought the car to a stop. The motor died and, despite repeated efforts, he could not get it started, and the rear portion of the vehicle was projecting, as aforesaid, into the eastbound traffic lane. He certainly had knowledge of the fact the vehicle he was operating was not in good running condition and that its motor had stalled several times previously. The trial court concluded, and we agree, that there was no question but that he was negligent, under the circumstances, in causing the automobile to be parked in a position of peril.
Thomas did not appear at the trial and there is in the record only his ex parte statement, taken out of the presence of the plaintiff and his attorney, which was substituted for his testimony on the stipulation that he would, if present, testify substantially in accord with the statement on direct examination. In this statement Thomas placed another car, westbound, at the scene of the accident, which he said arrived shortly before the accident and parked on the north shoulder of the highway. Thomas stated the driver of that vehicle stopped to lend assistance. One of the passengers in the Manuel automobile testified there was a vehicle immediately in front of the Manuel car but the testimony of this witness is rather vague. Thomas also stated there was a hitch-hiker present at the time who was flagging traffic. This witness was never located. One of the occupants of the Manuel car testified she saw a man in the highway waving a flashlight, flagging traffic. This is the only mention of a flashlight and none of the other witnesses, including Thomas, mentions any flashlight whatsoever.
The Manuel car, driven by Mrs. Manuel, contained two guest passengers, Doris Green and Vela Soileau. Doris Green stated the Manuel car was still moving when it was struck by the plaintiff's car. She did not see the car which Thomas stated had stopped to lend assistance to him. Vela Soileau testified that just as she saw the parked Hagerman car the plaintiff's car struck it, while the Manuel car in which she was traveling, was still moving when it was struck. She said she saw another car ahead of the car in which she was riding but she did not think it was stopped and she did not see it after the accident.
Mrs. Manuel, the driver of the Manuel car, was originally made a defendant. She was not subpoenaed, nor was her testimony presented at the trial. Apparently there was no effort made by the defendant to take the deposition of this witness. As she was driving the car and had apparently brought it almost to a stop upon seeing the Hagerman vehicle she evidently would have thrown some light upon the facts of this case, especially in view of the uncertain testimony of Doris Green and Vela Soileau.
The plaintiff testified he saw only one automobile near the scene of the accident and this was the car driven by Mrs. Manuel; that it was moving slowly when he glanced off the parked automobile and struck it.
The evidence as a whole indicates the first car, which Thomas stated had stopped to lend him assistance, had evidently traveled on to the west and was not near the parked automobile; and perhaps had traveled on in a westerly direction to turn around and return. No one places it at the scene of the accident after it occurred.
The evidence seems convincing that the parked Hagerman automobile had no headlights nor taillights burning and was a completely unlighted object protruding partially across the highway. The fact that the motor would not start until the car was pushed seems to indicate the battery was dead. It had stalled several times previously and no doubt the battery was too weak to energize its lighting system.
The plaintiff testified that when he was approaching the scene of the accident he was blinded a trifle by the lights of the Manuel car and he was very close to it when this car changed its lights either from bright to dim or from dim to bright, confusing him for a moment and affecting his vision. He further testified that it was just a second from the time his vision was affected until the time he struck the Hagerman car; that he did not have time to stop but that he did try to stop in the short seconds left to him. He applied his brakes in an effort to avoid the accident but it was too late.
The plaintiff further testified he never saw any one trying to warn him and had no idea his traffic lane was blocked until a few seconds before the actual impact. While Thomas, in his statement, said he saw a man some 200 feet west of the parked car when the plaintiff's car was approaching and that he called to him to flag the oncoming traffic, he further stated that a friend of his picked up this hitch-hiker and he intended to find out who he was, yet the defendant has not shown any effort to locate this person. Doris Green, one of the passengers in the Manuel car, testified that she saw a man west of the Hagerman car flagging down traffic with a flashlight. As no one else saw this man and Thomas did not mention any flashlight or other warning device in his statement, nor did he mention it to the State trooper who investigated the accident, it was not proven that any one was giving any sufficient warning to the plaintiff. Thomas stated he got out in the road beside the car he was driving and waved his hands over his head and that the person he mentioned got out in the road and waved his hands also. Vela Soileau stated she saw a man standing next to the parked automobile but she does not mention any flashlight at all.
Rooney McDaniel, the girl in the car with Thomas, stated she did not see anything and her testimony sheds no light upon the facts of this case other than that the automobile had stalled and was in the position on the highway as hereinabove stated.
The trooper, Fontenot, who investigated the accident, having arrived at the scene some 15 minutes after the collision, testified that as far as he could determine the sole witnesses were Mrs. Manuel and the two passengers in her car, Rooney McDaniel, the passenger in the car Thomas was driving, Thomas and the plaintiff. Mrs. Manuel did not testify in any...
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