Hopkins v. State Through Dept. of Highways

• Decision Date: 01 July 1964
• Docket Number: No. 6205,6205
• Citation: 167 So.2d 441
• Parties: Edward L. HOPKINS v. STATE of Louisiana, through the DEPARTMENT OF HIGHWAYS.
• Court: Court of Appeal of Louisiana — District of US

Page 441

167 So.2d 441

Edward L. HOPKINS v. STATE of Louisiana, through the DEPARTMENT OF HIGHWAYS.

No. 6205.

Court of Appeal of Louisiana, First Circuit.

July 1, 1964.

Rehearing Denied Sept. 30, 1964.

Writ Refused Nov. 9, 1964.

W. Crosby Pegues, Jr., D. Ross Banister, Norman L. Sisson, and George W. Lester, by George W. Lester, Baton Rouge, for appellant.

Kilbourne, Dart & Jackson, by Fred C. Jackson, St. Francisville, for appellee.

Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.

LANDRY, Judge.

This is one of two companion cases arising from a common automobile accident and consolidated for trial in the court below. In a single judgment, the honorable trial court dismissed the consociate cause but awarded damages in favor of plaintiff herein against the State of Louisiana from which said adverse adjudication defendant has appealed.

The clear and simple circumstances from which this litigation arises are virtually uncontested. The sole issue before the court concerns the legal conclusions to be drawn from mutually admitted events leading to a collision between approaching automobiles upon a public highway.

The accident in question occurred at approximately 8:00 P.M., June 23, 1960, on a tangent of paved Louisiana Highway No. 1, near the intersection of said highway and Normandy Lane, between Batchelor and Morganza, Pointe Coupee Parish. At the point of collision the roadway consists of a concrete two-lane highway 18 feet in width coursing in a northerly-southerly direction through flat farm lands and having fairly wide grassy shoulders on both sides of its improved travel surface.

Plaintiff, Edward L. Hopkins, was driving a 1956 Dodge Pickup truck along said highway in a southerly direction at an estimated speed of 40 miles per hour and, at a point near Normandy Lane, overtook and passed a school bus traveling slowly in the same direction. After overtaking and passing the school bus plaintiff returned to the right southbound lane and immediately noted the lights of an oncoming northbound vehicle approaching in the distance. Although the approaching vehicle was traveling on its proper side of the highway with its driver in full control, plaintiff admits that he, plaintiff, 'veered over to the right to give it clearance' as it was his custom in driving to afford an oncoming motorist as much of the highway as possible consistent with the safe operation of plaintiff's own vehicle. Plaintiff also concedes he was not blinded by the lights of the approaching car. Granting further that he had no intention of leaving the paved portion of the highway, plaintiff nevertheless admits that upon swerving to his right, he did not reduce his speed and inadvertently drove his truck off the paved portion of the highway where the right front wheel of his said vehicle struck a deep rut adjacent to the surfaced portion of the roadway. Upon striking the rut, plaintiff lost control of his vehicle which then deflected and crossed the highway into the opposing lane. Just as plaintiff regained control of his vehicle and was attempting to resume his proper side of the highway, plaintiff's truck was struck in the northbound lane by the approaching vehicle, a 1957 Mercury 4-door sedan being operated by one Claiborne Baptiste. The collision resulted in damage to both vehicles and personal injuries to plaintiff.

Baptiste testified that approximately one mile from the scene of the accident, while traveling northerly at a speed of 50 to 55 miles per hour, he observed the oncoming Hopkins vehicle swerving from one side of the road to the other. Noting the unusual action of the oncoming vehicle, Baptiste slowed the speed of his vehicle, dimmed his lights in the belief that his headlights may have blinded the approaching motorist and prepared to leave the roadway and take the shoulder if necessary to avoid a collision. (Presumably at this time plaintiff was in the act of passing the school bus which he referred to in his testimony although Baptiste's testimony contains no reference to the presence of a third vehicle.) After observing the approaching vehicle swerve from side to side for a distance of about one-quarter mile, Baptiste then noted the vehicle return to its proper side of the highway and continue southerly in its proper lane of travel with its driver apparently in full and complete control. When the oncoming truck regained its proper side of the highway the two vehicles were then approximately one-half mile apart and Baptiste continued northerly in his proper lane of travel in the belief that all danger of an accident had passed. As the two vehicles continued their approach, each traveling in its proper lane of travel, Hopkins' truck suddenly swerved into the northbound lane of travel and the collision ensued.

We believe it unnecessary to detail the testimony of the witnesses who deposed regarding the condition of the shoulder of the highway. It suffices to state the evidence shows that at the point where the right front wheel of plaintiff's truck left the pavement, immediately adjacent to the concrete slab there existed a rut approximately 100 feet in length and varying in depth from 8 to 12 inches. It further appears that in inadvertently driving his vehicle off the highway, the right front wheel of plaintiff's truck entered this rut causing plaintiff to lose control of his vehicle with the result herein previously indicated. The record also leaves no room for doubt that this defective condition of the shoulder had existed for some months prior to the accident to the actual and constructive knowledge of defendant's employees.

In substance plaintiff maintains defendant was negligent in permitting the continued existence of the rut immediately adjacent to the surfaced portion of the highway which dangerous, defective condition was the sole cause of plaintiff losing control of his vehicle and was therefore the sole proximate cause of the accident.

Defendant, however, maintains it was free of negligence and contends the accident resulted solely from the negligence of plaintiff in that plaintiff: (1) failed to have his vehicle under proper control; (2) negligently drove his vehicle off the traveled portion of the highway into the rut without cause and in the absence of an emergency requiring plaintiff to abandon the safe, paved surface of the road to avoid a possible accident; (3) neglected to bring his vehicle to a stop after driving same from the paved portion of the highway; (4) pulled his vehicle back onto the highway immediately in front of and into the lane of travel of the approaching vehicle driven by Baptiste; and (5) negligently and inadvertently drove his vehicle into the opposing traffic lane occupied by the approaching Baptiste automobile. In the alternative defendant alleges plaintiff's contributory negligence in the above respects.

The evidence established beyond doubt (as found by the learned trial court) that plaintiff lost control of his vehicle immediately after the right front wheel of his truck left the concrete roadway and that the cause of said unfortunate event was the defective condition of the shoulder of the highway.

Defendant, Department of Highways, is expressly charged by law with the duty of maintenance of the public highways of this state. LSA-R.S. 48:21.

A 'highway' is defined in LSA-R.S. 48:1(11) as follows:

'(11) 'Highway' means a public way for vehicular, mounted, and pedestrian traffic, including the entire area dedicated thereto and the bridges, culverts, structures, appurtenances, and features necessary to or associated with its purposes.'

The definition of 'maintenance' as relates to public highways is contained in LSA-R.S. 48:1(13) which provides:

'(13) 'Maintenance' is the operation, activity, and continuing process of repairing and preserving an existing highway or any part thereof to keep it at or near its original level or standard of usefulness.'

In view of the foregoing it is clear beyond doubt that responsibility for maintenance of the highway in question herein rested upon defendant, Department of Highways.

In addition, it has been held that the 'shoulders' of a highway are part of the state highway system thereby imposing upon the Department of Highways the duty and obligation of maintaining the shoulders of all...