Hilton v. Bankers Fire & Marine Ins. Co.

• Decision Date: 06 November 1961
• Docket Number: No. 403,403
• Citation: 134 So.2d 82
• Parties: Arthur W. HILTON and his wife, Mrs. Betty D. Hilton, Plaintiffs and Appellees, v. BANKERS FIRE & MARINE INSURANCE COMPANY, Defendant and Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 82

134 So.2d 82

Arthur W. HILTON and his wife, Mrs. Betty D. Hilton, Plaintiffs and Appellees, v. BANKERS FIRE & MARINE INSURANCE COMPANY, Defendant and Appellant.

No. 403.

Court of Appeal of Louisiana, Third Circuit.

Nov. 6, 1961.

Watson, Williams & Brittain, by Arthur C. Watson, Natchitoches, for defendant-appellant.

John Makar, Natchitoches, for plaintiffs-appellees.

Before FRUGE , HOOD and CULPEPPER, JJ.

CULPEPPER, Judge.

This opinion applies not only to the above numbered and entitled appeal, but also to the companion cases of Thompson et al. v. Grain Dealers Mutual Insurance Company, bearing No. 402, La.App., 134 So.2d 88, and Silvia v. Grain Dealers Mutual Insurance Company et al., bearing No. 405 on the docket of this Court of Appeal, 134 So.2d 88, in which companion cases separate decisions are also being rendered this date. These three suits, which were consolidated for trial in the lower court and for argument on appeal, arose out of a collision which occurred at about 7:30 a.m. on December 12, 1958, at the intersection of Fifth Street and Touline Street in the City of Natchitoches, Louisiana. Mrs. Melba L. Thompson was driving her 1957 Chevrolet station wagon west along Touline Street and was struck in said intersection by a 1958 Ford automobile being driven south along Fifth Street by Mrs. Betty Hilton. Mildred Silvia, a passenger in the Thompson vehicle, originally filed suit against the insurers of both the Thompson and Hilton automobiles, but previous to trial settled and compromised her claim as against Thompson's insurer, Bankers Fire & Marine Insurance Company, leaving at issue herein only her claim as against Hilton's insurer, Grain Dealers Mutual Insurance Company.

In a well considered written opinion the trial judge found that the accident was caused solely by the negligence of Mrs. Thompson in failing to yield the right of way to Mrs. Hilton who was traveling on the favored street. Consequently judgment was rendered against Mrs. Thompson's insurer, Bankers Fire & Marine Insurance Company, and in favor of Mrs. Hilton for the sum of $3,000 for her personal injuries, and in favor of her husband, A. W. Hilton, for the sum of $966.65 in special damages. Both the suit filed by Mildred Silvia and the suit filed by Mrs. Thompson and her husband against Hilton's insurer, Grain Dealers Mutual Insurance Company, were dismissed. The parties cast in these respective judgments have appealed. In the suit which she filed, Mrs. Hilton has answered the appeal seeking an increase in the award for personal injuries.

Addressing ourselves first to the issue of negligence on the part of Mrs. Thompson, we find her counsel contending at the outset, that although stop signs were present on Touline Street indicating that Fifth Street was the favored thoroughfare, there was no ordinance of the city of Natchitoches filed in evidence to show which of these streets had the right of way. We cannot agree with counsel in this contention because there was filed in evidence without objection a certified copy of Ordinance No. 393 of the city of Natchitoches adopted in 1936. Section 29 of which ordinance clearly establishes that Fifth Street, running north and south, has the right of way over Touline Street, which runs east and west.

The evidence shows that Mrs. Thompson was proceeding west on Touline Street approaching the intersection of Fifth Street; that both streets are paved and approximately 25 feet in width; that located on the northeast corner of said intersection is a large quonset building which obstructed vision from Touline Street north along Fifth Street; that Mrs. Thompson either stopped or slowed down for the intersection but she did so at a point from which she could not see north along Fifth Street, and consequently she started pulling out slowly to a position from which she could see around the quonset building; that although Mrs. Thompson testified she looked both to the left and to the right and saw no cars approaching, it is obvious from the physical facts of the collision that the Hilton automobile was approaching from Mrs. Thompson's right and was in clear view, very near the intersection, but Mrs. Thompson simply failed to see it; that on failing to see any approaching cars. Mrs. Thompson slowly accelerated and started across the intersection and when her vehicle reached such a position that its front end was slightly past the intersection and its rear end at about the middle of the intersection, the right rear portion of her vehicle was struck by the front portion of the Hilton automobile; that the collision occurred in the northwest quadrant of the intersection.

With regard to the actions of Mrs. Hilton, the facts show that she was proceeding south along Fifth Street toward the intersection at a speed within the legal limit of 25 miles per hour; that she saw the Thompson vehicle when it came into view from behind the quonset building and realized that Mrs. Thompson was not going to yield the right of way; that Mrs. Hilton immediately applied her brakes, leaving about 12 feet of skid marks, but was unable to avoid the collision.

Under these facts the first argument presented by counsel for Mrs. Thompson is that she had pre-empted the intersection. This argument has no merit. The jurisprudence of this state is well established that in order to invoke the doctrine of pre-emption a person must not only show that he entered the intersection first, but he must also show that at the time of such entrance he had a reasonable opportunity and expectation of clearing the intersection without obstructing the crossing thereof by other vehicles. See McCoy v. State Farm Mutual Insurance Co., 129 So.2d 66 (3 Cir.App.1961) and the many cases cited therein. In the instant case we have no difficulty in finding from the facts that although Mrs. Thompson actually entered the intersection first she did not have a reasonable expectation or opportunity of crossing the intersection without obstructing the movement of the Hilton vehicle. Clearly Mrs. Thompson cannot rely on the doctrine of pre-emption.

Under our reasoning set forth above we conclude that Mrs. Thompson was guilty of negligence in failing to yield the right of way to Mrs. Hilton. This brings us to Mrs. Thompson's next argument which is that the last clear chance doctrine is applicable here. The thrust of this argument is that Mrs. Hilton had a chance to avoid the accident after she saw the Thompson vehicle and realized that it was not going to stop. In the recent case of McCoy v. State Farm Mutual Insurance Co., supra, this court cited numerous cases and quoted the applicable law from Koob v. Cooperative Cab Co., 213 La. 903, 35 So.2d 849, 851, in which our Supreme Court held as follows:

'* * * The motorist on the right-of-way street, with knowledge of the location of such a stop sign, has a right to assume that any driver approaching the intersection from the less favored street will observe the law and bring his car to a complete stop before entering the intersection, and such a motorist can indulge in this assumption until he sees, or should see, that the other car has not observed, or is not going to observe, the law.'

In the instant case, Mrs. Hilton testified that she saw the Thompson vehicle as soon as it appeared from behind the quonset building and realized that it was not going to stop. Whether or not Mrs. Hilton had a chance to avoid the accident, after making this observation, depends on the location of the quonset building and the locations and speeds of the two vehicles at the time. The evidence...