Gulf States Utilities Co. v. Guidry

CourtCourt of Appeal of Louisiana (US)
Citation183 So.2d 122
Docket NumberNo. 6538,6538
Decision Date24 January 1966

Page 122

183 So.2d 122
Alton J. GUIDRY.
No. 6538.
Court of Appeal of Louisiana, First Circuit.
Jan. 24, 1966.
Rehearing Denied Feb. 28, 1966.

Page 123

William A. Norfolk, of Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellant.

Robert W. Williams, Jr., Baton Rouge, for appellee.


LANDRY, Judge.

Plaintiff here, Gulf States Utilities Company, prosecutes this appeal from the judgment of the trial court rejecting its demand against defendant Alton J. Guidry, for property damage sustained when an automobile being driven by appellee left the roadway and struck one of plaintiff's utility poles adjacent thereto.

Two questions are presented for determination herein, namely, whether appellant

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has established liability on the part of appellee and, if so, whether sufficient proof of damages was adduced on the trial below.

The facts and circumstances surrounding the instant case are simply and succinctly stated to the effect that on the night of February 21, 1960, at approximately 12:30 A.M., defendant, operating his 1955 Ford along Hanks Drive about four-tenths of a mile east of the Airline Highway in East Baton Rouge Parish, at a speed of 40 miles per hour in a 30 mile zone, left the paved portion of the highway, traveled a distance of 90 feet in, along and across a ditch and collided with a utility pole belonging to appellant. Hanks Drive, a straight, level, paved thoroughfare, was dry at the time of the accident.

Appellant predicates its case on the principle of res ipsa loquitur. Defendant maintains he has discharged the burden incumbent upon him pursuant to the doctrine invoked by plaintiff.

It is well established jurisprudence that the doctrine of res ipsa loquitur is a rule of evidence, the applicability of which is to be determined in each case at the conclusion of the trial. Day v. National United States Radiator Corporation, 241 La. 288, 128 So.2d 660.

With the above stated principle in mind we note that, aside from the events herein previously mentioned, the only evidence of record concerning the circumstances of the accident is the testimony of the investigating officer, Trooper Warren B. Melancon, as follows:

Q Did you question the driver at that time?

A Yes, sir, we did.

Q Did you ask him what had happened, what had caused the accident?

A Yes, sir.

Q What did he tell you?

A Well, he told us that he was driving down Hanks Drive at approximately forty miles an hour and a car came out of a side street into the highway and the lights blinded him causing him to leave the roadway to avoid a collision, herefore he struck the pole.

Q In your investigation of the accident did you find any evidence to support his version of how it happened?

A No, sir, we couldn't find any indication that there was another car involved in the--that had come out of the side street. There were no cars at the scene, no one had stopped. We didn't find any skidmarks or anything on his side of the road that would indicate that anyone was on his side of the road.

Q Did--how fast did Mr. Guidry say he was traveling?

A Approximately forty miles an hour, sir.

Q And what is the posted speed limit at that place?

A Thirty.

Q Were there any skidmarks from the Guidry vehicle that you could determine?

A No, sir, not that we could find at the scene.

Q Any evidence at all that he had attempted to brake his car or reduce the speed?

A No, sir, we couldn't.

Defendant did not testify in his own behalf; neither was he called on cross-examination by appellant.

Page 125

In his reasons for judgment our learned brother below indicated he felt obligated to accept as true the statement made by defendant to the investigating officer considering no evidence was offered in contradiction thereof. On this basis he concluded plaintiff failed to discharge the burden of proof required of a claimant.

In substance appellant's specifications of errors allege the trial court improperly held and concluded: (1) The doctrine of res ipsa loquitur was inapplicable to a situation wherein an automobile left the highway and struck a stationary object; (2) The failure of defendant to testify and give direct testimony as to the cause of the accident did not create a presumption his evidence would have been unfavorable to his cause; (3) The mere recital by the investigating officer of an exculpatory statement made by defendant following the accident was sufficient to sustain the burden of proof incumbent upon defendant to explain the cause of the accident; and (4) Failing to award appellant the damages to which appellant was entitled.

An exhaustive search of our jurisprudence reveals application of the doctrine of res ipsa loquitur (the thing speaks for itself) has been restricted by our appellate courts to a limited number of factual situations, but that the cases falling within each such category are numerous. See, for example, Harris v. Varnado, La.App., 94 So.2d 74, 79 A.L.R.2d 204. See also 79 A.L.R.2d 217 at § 1(h) of the annotation for various citations wherein the principle of res ipsa loquitur has been applied to automobile accidents under different circumstances. Regarding the precise issue presently before us, an annotation is to be found at Volume 79 A.L.R.2d 6, entitled 'applicability of res ipsa loquitur doctrine where motor vehicle leaves road.'

Germane to the principle under consideration is the following language employed by our Supreme Court in Day v. National United States Radiator Corporation, 241 La. 288, 128 So.2d 660:

'As this court has often said, the doctrine of res ipsa loquitur is a rule of evidence, the applicability of which is to be determined in each case at the conclusion of the trial. When the doctrine of res ipsa loquitur is applicable to a case, the accident which has caused the plaintiff's damages makes out a prima facie case of negligence by the defendant, and the burden is then on the defendant to show absence of negligence on its part. (Citing cases.) This doctrine is a qualification of the general rule that negligence is not to be presumed but must always be affirmatively proved, and therefore should be sparingly applied, and only in exceptional cases where the demands of justice make that application essential. (Cases cited.)

The following is found in 38 Am.Jur. 999, sec. 303, Negligence:

'The doctrine of res ipsa loquitur has no application where all the facts and circumstances appear in evidence. Nothing is then left to inference and the necessity for the doctrine does not exist. Being a rule of necessity, it must be invoked only where evidence is absent and not readily available. It is not to be invoked when the evidence is available, and certainly not when it is actually presented. Nor has it any application where the cause of the accident is known and is not in question."

We note the doctrine in question has been applied in Adams v. Spellman, La.App., 130 So.2d 460, and Frey v. DiMaggio, La.App., 153 So.2d 571, both involving instances wherein a moving vehicle collided with a parked automobile. Under similar circumstances, but without reference to the doctrine of res ipsa loquitur, a presumption of negligence on defendant's part was held to

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result in Alpaugh v. krajcer, La.App., 57 So.2d 700.

The criteria of applicability of the doctrine of res ipsa loquitur to automobile collision cases were set forth by the Supreme Court in Loprestie v. Roy Motors, Inc., 191 La. 239, 185 So. 11, as follows:

'The doctrine of res ipsa loquitur is based upon the legal proposition that where the defendant is shown to be in a better position to explain the accident than the plaintiff, and where the circumstances of its occurrence indicate that plaintiff cannot be expected to have any information as to the causes of the accident, which is of a kind that does not occur ordinarily when due care has been exercised, 'the rule of evidence is that the accident speaks for itself--res ipsa loquitur--that is to say, That a presumption of negligence arises from the fact itself of the accident.''

There appears some lack of uniformity among our appellate courts as regards application of the principle of res ipsa loquitur to actions by guest passengers against host drivers. In Gomer v. Anding, La.App., 146 So. 704, this court applied the principle in a suit by a guest passenger against his host driver, and the same result was reached in the subsequent case of Levy v. Indemnity Ins. Co. of North America, La.App., 8 So.2d 774. This court also held the doctrine applicable to a guest passenger action in Bourg v. Aetna Casualty & Surety Company, La.App., ...

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