Hightower v. Dr. Pepper Bottling Co. of Shreveport, Inc.

• Decision Date: 30 October 1959
• Docket Number: No. 9059,9059
• Citation: 117 So.2d 642
• Parties: Mrs. Frances Folk HIGHTOWER, Individually and for the Use and Benefit of James Allen Hightower, Plaintiff-Appellee. v. DR. PEPPER BOTTLING COMPANY OF SHREVEPORT, INC. et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 642

117 So.2d 642

Mrs. Frances Folk HIGHTOWER, Individually and for the Use and Benefit of James Allen Hightower, Plaintiff-Appellee. v. DR. PEPPER BOTTLING COMPANY OF SHREVEPORT, INC. et al.,

Defendants-Appellants.

No. 9059.

Court of Appeal of Louisiana, Second Circuit.

Oct. 30, 1959.

On Rehearing and Motion to Remand Jan. 26, 1960.

Certiorari Granted March 23, 1960.

Cook, Clark, Egan, Yancey & King, Shreveport, for appellants.

Joseph R. Bethard and G. A. O'Steen, Shreveport, for appellee.

GLADNEY, Judge.

Mrs. Frances Folk Hightower brought this, a tort action to recover damages for herself and her minor son, occasioned by an automobile-truck collision which took place August 22, 1958, near the city limits of Shreveport, on the Shreveport-Mansfield Highway (U.S. No. 171). James Colie Hightower, the driver of the automobile and husband of plaintiff, was killed instantly and Mrs. Hightower received serious injuries. Named defendants in the suit are Dr. Pepper Bottling Company of Shreveport, Inc., the owner of the truck, and its liability insurer, Hardware Mutual Casualty Company. After a trial of the issues of negligence so presented, a judgment was rendered favorable to plaintiff, from which decree the defendants have appealed.

A short time prior to the accident which occurred approximately at 5:20 o'clock P.M., the plaintiff and her husband entered their 1955 Chevrolet sedan for the purpose of proceeding to the wedding of a brother of James Colie Hightower, and after stopping at a gasoline station, they proceeded southward and approached an overpass. Hightower was driving at a speed which was shown not to have been in excess of fifty-five miles per hour. As the Chevrolet automobile was approaching the overpass, a Diamond T bottle truck and trailer driven by Charles Lee Lindley was traveling north at a speed of thirty miles per hour approaching the same overpass. A head-on collision between the two vehicles occurred on the north side of the overpass. Accompanying Lindley were two of his colored helpers, Lacy Williams and Nathaniel Jones. Strangely enough, these two employees were asleep at the moment of the collision.

The weather was cloudy and because of prior rain the highway was wet. Forasmuch as the point of impact was on the overpass the following facts afford some assistance in resolving the issues hereinafter discussed. The total length of the overpass was 846 feet and its width 23 feet 10 inches, and it forms an arc with a grade of 1.2 per cent (1.2 feet for 100 feet of distance). Following the impact of the vehicles the truck came to rest in its proper lane of travel, the east or northbound traffic lane, whereas the automobile was stopped 21 feet north of the point of impact on the western part of the west lane for southbound traffic, some several feet from the center line.

The accident was investigated by officers of the Sheriff's Department of Caddo Parish, two State Troopers, and by Deputy Coroner Dr. Charles S. Boone. Numerous photographs were taken for the purpose of preserving such physical evidence as tire marks, positions of the vehicles and physical damage to the vehicles. Deputy Sheriff W. D. McCall and State Trooper J. C. Skannal ascertained from the visible physical evidence, a place on the highway which they considered marked the point of impact. This point was 21 feet north of the position of the Hightower automobile after the collision and 18 inches west of the white center line of the highway. These witnesses testified that they localized the point of impact from bits of small broken glass and other debris, and tire marks found at that spot. The truck, which carried soft drink bottles, was described as being a semitrailer or a truck-trailer combination which has only one set of wheels on the trailer. The rear of the truck part of the combination unit was equipped with dual wheels and so was the trailer thereof.

A careful examination of the damages inflicted upon the two vehicles was made by Dr. William H. Tonn, Jr., an engineer who was called as an expert on collision analysis. He testified his findings as to the truck damage showed: 'its left front fender and bumper received a blow extending over to the right or in depth of about six or eight or nine inches, something like that. Then there was damage to the rear wheels of this tractor unit. These rear wheels had received a blow to the left rear tractor wheels, breaking the spring hangers and breaking the drive shaft and rotating the housing, that is, both wheels, on the left and right side both, the differential had been rotated backwards approximately 30 degrees. Then the frame was bent over to the left from a blow--from a force to the right--to the right from a force to the left a distance of three inches. The bed of the trailer had received a severe blow and the metal and so forth was bent and torn on it. Structurally the trailer had borne the force very well.' The description of the damage to the Chevrolet was given by him: '* * * The point of impact or the force was applied to the left front fender which was torn off. The hood was torn off. The top of the car had been torn off and rotated backwards and the left front corner of this top at the point at which it attached to the windshield post was--there was the imprint of the corner angles of the trailer. I measured them and determined them to be the same dimensions as those angles. I could see the print of them and I measured them and they checked out completely. The Chevrolet's steering wheel was bent down and to the right, which is highly important in any collision.'

Eyewitnesses to the accident who testified were Charles E. Lindley, Mrs. Frances Folk Hightower and John E. Whatley. The latter was traveling south and following the Hightower automobile. When the accident occurred he was approximately 1,000 feet away. Material evidence as previously pointed out, was also furnished by W. D. McCall and J. C. Skannal. The testimony of Lindley was discredited in several respects, by reason of (1) his having convicted of a felony; and of more importance (2) his testimony that he did not known what were the circumstances which caused the accident. Some of the testimony of Mrs. Hightower was found to be obviously untruthful. Further, we note Whatley apparently was not observing the two vehicles ahead of him immediately before their contact, for he testified that when he looked the accident was already in progress. The testimony of W. D. McCall was not entirely satisfactory because during his interrogation he became confused as to the actual location of the point of impact with reference to the Hightower car. This apparently was due to an error made in copying the original report of the accident. Even with such uncertainty arising from the testimony of Lindley, McCall and Mrs. Hightower, we have experienced no difficulty in resolving that the point of impact actually was established and was 18 inches or more west of the center line of the highway, and within the southbound traffic lane. This conclusion is fully substantiated by the evidence. Lindley at the coroner's inquest conducted by Deputy Coroner Charles E. Boone, on the date of the accident, August 22, 1958, gave the following sworn testimony:

'Q. So as you came over the--over the rise of this you call it, of this overpass, did you see this car coming toward you? A. No, sir, I didn't. I'd been having trouble with my truck the last few miles and I was working with the truck trying to get it over and trying to keep it going and I wasn't watching for cars down ahead of me, and I was staying on my side and trying to get my truck to run a little faster.

'Q. Did you--in other words, to get your car going, you have to have your head down towards the dashboard? A. No, sir, not all the time.

'Q. Well, were you looking up over the dashboard? A. Yes, sir, part of the time.

'Q. Well, if that was the case, you should have been able to see this car coming. A. Well, I--I should have I guess, I might have seen it, but I just don't remember.

'Q. You just don't recall seeing it? A. No, sir, I don't.

'Q. Well, when did you first see this car? A. Just as I came over the overpass and started down the other side. I looked up and I saw the car.

'Q. Was it right at you? A. Yes, sir.'

Mrs. Hightower testified the truck as it came over the crest of the overpass was over the center line in the southbound traffic lane and immediately before the collision the truck turned sharply to its right so that the front portion of the truck was not so far over the center line as the rear portion, the latter being about three feet west of the center line of the highway. Because the record discloses Mrs. Hightower concealed material information from her attorneys and the court, in her testimony related to the marital relations between her husband and herself, the judge considered her testimony only for the reason it was consistent with the physical evidence.

Whatley testified that when he first paid special attention to the two vehicles the truck was proceeding over the crest of the overpass in its own traffic lane, and the Hightower automobile was just entering the north end of the overpass with its left wheels close to the center line of the highway. Both vehicles, he said, were traveling in a normal manner and he next noticed them when the collision was already in progress, at which time the front left corner of the trailer and the left dual wheels of the trailer were across the center line of the southbound traffic lane.

It is our appreciation of the testimony of Trooper Skannal that it was consistent and credible and we find his positioning of the point of impact as 18 inches west of the center line reflects accurately the point of impact. Referring to certain photographs, this witness testified concerning the tracks of the truck, and said:

'Previous to the impact, approximately fifty feet before impact, the tracks were 28 inches into the...