Hoover v. Wagner

• Court: Court of Appeal of Louisiana
• Writing for the Court: LANDRY
• Citation: Hoover v. Wagner, 189 So.2d 20 (La. App. 1966)
• Decision Date: 13 June 1966
• Docket Number: No. 6682,6682
• Parties: Carl A. HOOVER v. John R. WAGNER et al.

Page 20

189 So.2d 20

Carl A. HOOVER v. John R. WAGNER et al.

No. 6682.

Court of Appeal of Louisiana, First Circuit.

June 13, 1966.

Rehearing Denied July 8, 1966.

Writ Refused Oct. 11, 1966.

Joseph F. Keogh, of Franklin & Keogh, Baton Rouge, for appellant.

Walton J. Barnes, Baton Rouge, for appellees.

Before ELLIS, LOTTINGER, LANDRY, REID and BAILES, JJ. ^*

LANDRY, Judge.

This appeal is by defendant John R. Wagner and his liability insurer, Allstate Insurance Company, from the judgment of the trial court awarding plaintiff, Carl A. Hoover, damages for personal injuries and related medical expense sustained and incurred in an accident which happened while plaintiff was in the act of passing a third vehicle in the vicinity of an intersection. Although the third vehicle was damaged in the collision, the driver thereof is in no way concerned in the present action.

The accident in question occurred in the City of Baton Rouge, at approximately 7:05 A.M., on November 13, 1963, at the junction of Drusilla Lane, a paved two lane highway 24 feet in width, running in a northerly-southerly direction, and Audrey Drive, an improved roadway of lesser but undertermined width, coursing in an easterly-westerly direction, running westerly from Drusilla Lane and forming what amounts to a 'T' intersection. Although the record does not so show with certainty, the clear impression from the testimony is to the effect Drusilla Lane is the favored thoroughfare notwithstanding the absence of signs or other tangible evidence of its superiority over Audrey Drive. Plaintiff, proceeding northerly on Drusilla Lane in his Rambler automobile, at a speed of 40 to 45 miles per hour (the lawful limit being 45 miles) was passing a Chevrolet Sedan owned by one Herman Farrar and also being driven northerly along Drusilla Lane. The collision occurred in the left or southbound lane of Drusilla Lane when Wagner, proceeding easterly on Audrey Drive, turned right on Drusilla Lane into the path of plaintiff's northbound vehicle. The precise point of impact and other relevant attending circumstances are somewhat in dispute as will hereinafter appear.

The record discloses that at a distance of 300 feet south of the intersection there is a 'knoll' or hill on Drusilla Lane but that from the apex thereof a northbound motorist on Drusilla Lane has a clear, unobstructed view of the intersection with Audrey Drive 300 feet ahead. It further appears that a house is situated 54 feet west of the southwest corner of Audrey Drive consequently a motorist proceeding easterly on Audrey Drive has an unimpeded view to the south while still a distance of 54 feet from Drusilla Lane.

Plaintiff Hoover testified he had been following the Farrar automobile at a distance of approximately 40 feet and at about the same speed as Farrar which he estimated to be between 25 and 30 miles per hour. Upon reaching the top of the knoll 300 feet south of Audrey Drive, he observed the roadway ahead was clear whereupon he accelerated his car to approximately 45 miles per hour, pulled into the left or passing lane and commenced his passing maneuver. Plaintiff further testified that his vehicle was completely in the left or passing lane while still about 20 feet to the rear of Farrar's automobile, at which time he estimated he was still between 200 and 250 feet south of the intersection. He proceeded thusly in the passing lane a distance of approximately 75 feet when he observed defendant's vehicle traveling slowly along Audrey Drive toward the intersection at which time he estimated he was still 175 feet south of the intersection and the front of his vehicle was not quite parallel with the front of the Farrar automobile. When he first observed defendant (at which time defendant had not yet entered the intersection) he took his foot off the accelerator and immediately thereafter realized defendant would not stop whereupon he applied his brakes full force. He approximated his distance from Audrey Drive at 120 feet when he attempted to stop. He further testified that the left side of his vehicle struck the front of the Wagner car with sufficient force to knock his vehicle to the right causing it to collide with the Farrar automobile. In essence, plaintiff testified that at the moment of impact defendant had just commenced his turn and only the front of appellant's automobile was actually in the intersection.

While the record does not show the width of the improved surface of Audrey Drive, the testimony of the witnesses and certain photographs introduced in evidence reveal that the paved portion of Audrey Drive 'fans out' at the intersection to provide a greater turning radius for motorists entering Drusilla Lane. In this regard it appears that the 'flaring out' of the surface of Audrey Drive commences at about the point where an easterly projection of the south edge of the paved portion of Audrey Drive would intersect the northerly projection of the ditch situated west of the west shoulder of Drusilla Lane at a distance of approximately ten feet west of the western edge of the paved surface of Drusilla Lane.

With the foregoing in mind, it is significant at this stage to state that plaintiff's vehicle left 48 feet of skid marks prior to the impact, entirely in the left or passing lane and practically in a straight line. It is also significant that the point of impact was fixed by the investigation officer, Trooper Robert B. Crown, at a spot two and one-half feet west of the center line of Drusilla Lane and one and one-half feet north of the easterly projection of the south curb line of Audrey Drive, or where the southwest end or tip of the flared surface of Audrey connects with the western edge of the improved portion of Drusilla Lane.

The testimony of defendant Wagner is to the effect that he approached the intersection at a speed of approximately 10 to 15 miles per hour. When he passed the house situated some 50 feet from the corner he glanced to his right and observed the Farrar automobile coming over the hill or knoll to the south. He then looked left, saw no vehicle approaching from that direction and upon reaching the point where the roadway of Audrey Drive 'fans out' he stopped his vehicle and again looked to the right at which time he noted the Farrar automobile about 150 to 200 feet away traveling northerly in the northbound lane. He saw no vehicle following the Farrar automobile and then commenced his turn looking down at the pavemet in order to follow the curve of the 'flare' or 'fan' in the pavement. As he completed his turn he again glanced up and, in his own words, saw plaintiff 'coming at me.' He immediately attempted to cut sharply to his right to take the ditch on the west side of Drusilla Lane but the collision occurred notwithstanding.

Farrar's testimony added little of probative value. He stated he was proceeding at about 25-30 miles per hour unaware of the presence of plaintiff's overtaking vehicle. He observed defendant approaching the intersection at a slow rate of speed. He was alerted to the presence of plaintiff's car upon hearing the initial impact whereupon he glanced into his rear view mirror and observed appellee's vehicle in a spin. Almost simultaneously his own vehicle was struck. He brought his car to a stop on the right side of the highway and went back to render what aid he could.

The principal error ascribed to our learned brother of the trial court by counsel for appellants herrein is failure to hold plaintiff guilty of negligence in passing at an intersection and declining to hold such negligence a proximate cause of the accident barring plaintiff's recovery. Alternatively, counsel for defendants contends the damages awarded by the trial court were excessive and should be reduced.

In oral reasons dictated into the record, the learned trial court found that plaintiff commenced his passing maneuver while approximately 300 feet south of the intersection and at a time when there was no oncoming traffic proceeding southerly on Drusilla Lane and no vehicle in sight traveling easterly on Audrey Drive toward the intersection. He also found that while plaintiff was passing the Farrar automobile, defendant was proceeding slowly toward the intersection and, when plaintiff realized defendant would not stop, plaintiff could not regain the northbound lane because of the presence therein of the Farrar car. He likewise believed plaintiff was passing in an intersection but concluded that this circumstance was not a proximate cause of the accident inasmuch as plaintiff was already in the passing lane in the act of overtaking Farrar before defendant commenced his turn onto Drusilla Lane. So finding, our esteemed brother below concluded defendant was solely at fault in driving into the intersection when plaintiff was so near as to make such maneuver imminently dangerous which dereliction he attributed to defendant's failure to note the approach of plaintiff's automobile.

That defendant Wagner was guilty of negligence proximately causing the accident is hardly open to argument. By his own admission he failed to see what he should have seen and in legal contemplation did see, namely, the presence of plaintiff's vehicle. On this score the record is abundantly clear plaintiff's vehicle was in plain sight and should have been observed by a motorist exercising even the slightest degree of care and observation. In stopping before proceeding into the intersection, Wagner performed only half the burden incumbent upon him. It is well settled that to stop at an intersection is insufficient if one does not look and see what is to be seen by a driver exercising reasonable care. Howard v. Insurance Company of North America, La.App., 162 So.2d 165; James v. State Through Bd. of Adm'rs of Charity Hospital of La. at New Orleans, La.App., 154 So.2d 497; Pate v. State Farm Mutual Automobile Insurance Co., La.App., 147 So.2d 766. We unhesitatingly concur in the trial court's...