Hebert v. Travelers Ins. Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: HOOD
• Citation: Hebert v. Travelers Ins. Co., 179 So.2d 513 (La. App. 1965)
• Decision Date: 27 October 1965
• Docket Number: No. 1525,1525
• Parties: Josephine F. HEBERT, Plaintiff and Appellee, v. The TRAVELERS INSURANCE COMPANY and Lester Vidrine, Defendants and Appellants.

Page 513

179 So.2d 513

Josephine F. HEBERT, Plaintiff and Appellee, v. The TRAVELERS INSURANCE COMPANY and Lester Vidrine Defendants and Appellants.

No. 1525.

Court of Appeal of Louisiana, Third Circuit.

Oct. 27, 1965.

Dubuisson & Dubuisson, by James T. Guglielmo, Opelousas, for defendants-appellants.

Preston N. Aucoin, Ville Platte, for plaintiff-appellee.

Tate & Tate, by Paul C. Tate, Mamou, for defendant-appellee.

Before TATE, SAVOY and HOOD, JJ.

HOOD, Judge.

This is an action for damages for personal injuries allegedly sustained by plaintiff, Mrs. Josephine F. Hebert, as the result of a two-car intersectional collision. One of the vehicles involved was a taxicab being driven by Joseph L. LeBleu, an employee of the owner, and the other was an automobile being driven by the minor son of Lester Vidrine. Plaintiff was riding as a fare-paying passenger in the taxicab at the time the accident occurred. The suit was instituted against The Travelers Insurance Company, which company was the public liability insurer of the driver of the taxicab, and against Lester Vidrine, who was uninsured.

Both of the defendants answered. Travelers also filed a third party demand against Lester Vidrine, alleging that the sole cause of the accident was the negligence of the latter's minor son, and demanding that Vidrine be condemned to reimburse Travelers fully in the event the latter is held to be liable, or alternatively, that he be directed to contribute one-half of the damages.

On the merits, the trial judge concluded that the drivers of both vehicles were negligent, but that the driver of the taxicab had the last clear chance to avoid the accident. Judgment was rendered, therefore, in favor of plaintiff and against Travelers for $1401.75, and judgment further was rendered dismissing the original petition and the third party action against Vidrine. Plaintiff and Travelers have appealed.

Another tort action arising out of this accident was instituted by Miss Helena Fontenot, was also was riding as a fare-paying passenger in the taxicab at that time. That suit was filed against the same defendants, and Travelers instituted a third party demand against Vidrine, as in the instant suit. Judgment was rendered in favor of plaintiff and against Travelers for $1105.90, and all demands against Vidrine were rejected. Miss Fontenot and Travelers appealed . Both suits were consolidated for trial and appeal, and judgment is being rendered by us in the companion suit on this date. See Fontenot v. Travelers Insurance Company, 179 So.2d 520.

The questions presented on these appeals are: (1) Was the driver of the taxicab negligent? (2) Was the driver of the Vidrine car negligent? (3) Did the trial court err in applying the doctrine of last clear chance under the circumstances presented here? (4) Is either plaintiff barred from recovery under the doctrine of assumption of the risk or because of contributory negligence? and (5) Is the award made in either suit excessive or inadequate?

The accident occurred about 7:30 p.m. on September 21, 1963, at the intersection of Coreil Street and Magnolia Avenue, in Ville Platte. The taxicab was traveling in a westerly direction on Magnolia Avenue, the favored thoroughfare, and the Vidrine car was being driven south on Coreil Street. There was a stop sign at the intersection, warning motorists approaching from the north on Coreil Street to stop before proceeding to across Magnolia. A building located in the northeast quadrant of this intersection prevented the driver of either of these cars from seeing the other until at least one of them reached a point within a few feet of the crossing. The streets are hard surfaced, and the weather was clear and dry. It was dark, and the lights of both vehicles were burning at the time the collision occurred.

Young Vidrine states that he saw the stop sign, that he brought his car either to a complete stop or almost to a stop before proceeding into the intersection, that he looked both ways and saw no other vehicle approaching, that he then proceeded into the crossing in low gear at a speed of about five miles per hour, and that the collision occurred when the front of his car reached a point just across the center line of Magnolia Avenue. He testified that he did not see the taxicab approaching until immediately before the collision occurred, and that it was then too late to avoid a collision.

The driver of the taxicab stated that he saw the Vidrine car as it approached the intersection, that Vidrine slowed down before entering it, that he then picked up speed and proceeded into the crossing in front of the taxi, and that the vehicles were about thirty feet apart when the Vidrine car entered the intersection. He testified that he applied his brakes lightly, intending to let the Vidrine car go on through, but that he made an error in judgment and that the front of the taxi struck the left rear door of the Vidrine car. When asked if he could have avoided the accident by slamming on his brakes, he replied, 'I imagine so, I might.'

Both drivers apparently were in their proper lanes of traffic when the collision occurred, the point of impact being just a few feet north of the center of the intersection. After the collision, the taxi came to rest a few feet west of the point of impact, and the Vidrine car came to rest about eighty feet southeast of the place where the collision occurred. The damage to the vehicles was of a relatively minor nature. There was nothing to prevent young Vidrine from seeing the approaching taxi after he reached a point within a few feet of the intersection, and he offers no reasonable explanation as to why he did not see it.

The legal speed limit on Magnolia Avenue is twenty-five miles per hour. The taxi driver testified that he was traveling at a speed of twenty to twenty-five miles per hour as he approached the intersection. His testimony as to the speed of his vehicle is supported to some extent by evidence showing that after the collision the cab came to a stop within a few feet of the point of impact, that it left no lengthy skid marks on the street and that only slight damage was done to the vehicles. The two plaintiffs testified, however, that the cab in which they were riding was being driven at an excessive rate of speed, that shortly before the accident occurred they had asked the driver not to drive so fast, that he had ignored their requests, and that the impact was of sufficient force to throw one of them against the dash and the other to the floor of the cab, causing both of them to sustain injuries. The trial judge, apparently accepting the testimony of plaintiffs, concluded that the cab was being driven at an excessive rate of speed.

The evaluation of the credibility of witnesses is primarily a function of the trier of fact, rather than of the reviewing court. Launey v. Traders & General Insurance Co., La.App. 3 Cir., 169 So.2d 757. Here, a determination of the speed at which the taxi was being driven involves an evaluation of the credibility of witnesses. There is sufficient evidence to support the finding of the trial judge that the taxicab was being driven at an excessive rate of speed as it approached and entered the intersection, and we are unable to say that the court erred in reaching that conclusion.

Applicable here, also, is the rule that a public carrier of passengers is required to exercise the highest degree of care for the safety of those it undertakes to transport, and that it is liable in damages for injuries caused by its slightest negligence. The mere showing that a farepaying passenger on a public conveyance sustained an injury, and that he failed to reach his destination safely, establishes a prima facie case of negligence on the part of the carrier, and it imposes the burden on the carrier of overcoming that presumption of negligence. Wise v. Prescott, 244 La. 157, 151 So.2d 356; Bruce v. Stuyvesant Ins. Co., La.App. 2 Cir., 159 So.2d 424.

In the instant suit, plaintiff has established that she was a fare-paying passenger in the taxi, a public carrier, that she sustained an injury and that she failed to reach her destination safely. A prima facie case of negligence has been made out against the insurer of the taxi driver, therefore, and the burden rests upon defendant Travelers to overcome this presumption of negligence. In our opinion it has failed to do so. We find no error, therefore, in the conclusion reached by the trial judge that the driver of the taxicab was negligent in...