Hicks v. Tilquit

• Decision Date: 30 June 1955
• Docket Number: No. 4062,4062
• Citation: Hicks v. Tilquit, 82 So.2d 100 (La. App. 1955)
• Parties: Martha V. Vega HICKS et al. v. Raymond TILQUIT et al.
• Court: Court of Appeal of Louisiana

Page 100

82 So.2d 100

Martha V. Vega HICKS et al. v. Raymond TILQUIT et al.

No. 4062.

Court of Appeal of Louisiana, First Circuit.

June 30, 1955.

Rehearing Denied Sept. 15, 1955.

Writ of Certiorari Denied Nov. 7, 1955.

Major & Ponder, Baton Rouge, for appellants.

Durrett & Hardin, Wallace A. Hunter, Baton Rouge, for appellees.

LOTTINGER, Judge.

Petitioner, Mrs. Martha Hicks, is the widow of the late Joseph H. Hicks, who was killed in an automobile accident. She sues for damages for his death, and is joined as party plaintiff by Traders & General Insurance Company who seeks damages in the amount paid under a collision policy on the Hicks vehicle. The defendants are Raymond Tilquit, the operator of the truck involved in the accident, and Maryland Casualty Company, the public liability insurer of the truck. The Lower Court gave judgment for petitioners, and the defendants have appealed.

The facts show that the afternoon and night of January 30, 1954, was a rainy one. Between rains there was a constant drizzle most of the afternoon and night. Official sunset that evening was 5:40 p.m.

At sometime between 3:00 and 4:30 p.m., on the afternoon of January 30, 1954, a Louisiana State Penitentiary truck and trailer was proceeding northerly on Highland Road which traverses the campus of Louisiana State University. The driver of the truck was defendant Tilquit, a trustee at the said penitentiary. Mr. Ducote, a penitentiary guard, was seated beside Tilquit in the truck. As the truck proceeded along the highway he brought his truck to a stop in front of the Pan American House on the campus to check his right rear dual tires. One of the tires was flat, and the other was in the process of going flat.

Highland Road, at the scene of the accident, is a blacktop highway of 24 feet in width. There are 'no parking' signs in the area, and there are no street lights. The record shows that traffic was heavy as there was a basketball game to be played in the L. S. U. Coliseum that night. The Coliseum is situated some three or four hundred feet south of where the truck stopped.

Within a few minutes from the time that the truck stopped another truck from Angola came to the scene and took Tilquit to a repair service station. In the meantime, Tilquit had removed the dual wheels from the right side of the truck. The truck was left in the same position in which it had been originally parked, with the right rear of the trailer jacked up and the dual wheels removed.

The testimony shows that the truck was parked parallel to the curb, with its right side anywhere from eleven inches to four feet from the curb. The photographs introduced into evidence indicate that the right side of the truck was about two feet from the curb.

The truck remained in this position until the accident occurred at approximately 6:45 p.m. Therefore, the truck remained in this position for a period of some three hours before the accident.

Richard P. Ducote, the penitentiary guard, remained with the truck. At one time he did leave the truck for a period of some half hour, at which time he went to determine what was the delay in repairing the tires.

The trailer was a stake body trailer painted red. The trailer was thirty-three feet seven inches in length, seven feet and nine inches wide, and the bed of the trailer was about four feet from the ground. The rear end of the trailer protruded some five feet to the rear of the rear wheels. The truck and trailer combination was some forty feet in length. The trailer was loaded with hay.

At 6:45 p.m. the deceased, Joseph H. Hicks, was driving his automobile in a northerly direction on Highland Road. With him was Mr. William E. Roucher, who was riding on the front seat to the right of the driver. Deceased ran into the rear end of the trailer causing his immediate death and seriously injuring his passenger. His widow seeks damages in the amount of $71,400, and his collision insurer seeks damages in the sum of $1,145. The Lower Court awarded damages to Mrs. Hicks in the sum of $10,000 plus legal interest from date of judicial demand, and damages of $1,090, plus interest, was awarded the insurance company. The defendants have appealed. Petitioners seek affirmance of the judgment below.

Several witnesses, although not eyewitnesses to the accident, testified as to the scene of the accident a short time prior to the collision. Mr. P. J. Materiste passed the scene of the accident at about 6:15 p.m., just about thirty minutes prior to the collision. He was proceeding in a northerly direction, the same direction in which the truck and the Hicks auto were headed. He testified that he saw no flares or signal lights on or near the truck although it was already dark. He stated that he almost ran into the truck, that it loomed up in front of him as a dark object. He first noticed the truck as a shadow from the lights of the cars approaching him. He said that he stopped to allow approaching traffic to pass, that there was no room for traffic going both directions to pass around the truck.

Mr. C. L. Daigle, who passed the scene of the accident at about 6:30 p. m., stated that there was one blinker light burning on the rear of the truck. No other lights were burning, nor did he see any reflectors. He testified that he stopped to tell the driver of the truck that it was a 'death trap' but was unable to find any occupant of the truck.

Richard Ducote, who was left in charge of the parked truck, testified that he put out reflectors shortly before dark. He stated that he placed one 10 to 15 feet in front of the truck, one 10 to 15 feet to the rear of the truck and another 25 to 30 feet to the rear of the truck. After the accident one of the rear reflectors was found crushed near the curb at a distance of about 25 feet to the rear of the truck. Another was found about at the rear end of the Hicks automobile turned over on its side. No evidence in the record shows just when the first reflector was crushed, or when the second was turned over.

The Lower Court stated as follows:

'The facts stated appear to fall far short of showing that proper precautions had been taken and maintained as required by law for the protection of oncoming traffic from the hazards of the parked vehicle. It was the testimony of the officer Nettles that he considered the situation a 'horrible hazard.' He and his fellow officer, Baxley, were the only eyewitnesses to the collision. They came to the scene for the avowed purpose of parking their patrol car to the rear of the parked vehicle, pointing in the opposite direction with its headlights and spot light on in order to properly warn oncoming traffic. Unfortunately they arrived seconds too late.'

We feel that the evidence clearly establishes that the defendants were guilty of negligence. None of the witnesses who preceded the accident saw any flares or reflectors displayed as is required by State law and the ordinances of the City...