Horn v. Barras

• Decision Date: 12 February 1937
• Docket Number: 1670
• Court: Court of Appeal of Louisiana — District of US
• Parties: HORN v. BARRAS

172 So. 451

HORN v. BARRAS

No. 1670

Court of Appeal of Louisiana, First Circuit.

February 12, 1937

Bruner & Chambers, of Crowley, for appellant.

F Xavier Mouton, of Lafayette, for appellee.

OPINION

LE BLANC, Judge.

This is a damage suit growing out of an automobile accident, in which the demands of the plaintiff were rejected by the judgment rendered in the lower court, and his suit was dismissed. The defendant had reconvened for damages also, but the judgment likewise rejected the reconventional demand and dismissed the same. The plaintiff appealed, but defendant did not; neither did he answer plaintiff's appeal. That part of the judgment which dismissed the reconventional demand therefore is not before us for review.

The accident occurred on the night of August 8, 1934, when plaintiff's car, which was being driven at the time by his brother, A. F. Horn, Jr., ran into a large freight truck of the defendant which was parked on the paved highway about five miles east of Crowley, La., in Acadia parish. The truck which weighed 15,000 pounds, was loaded with 100 pockets of rice weighing 100 pounds each, making a total weight of 121/2 tons. It had taken on this load of rice in Crowley late that evening, and was on its way to deliver it at Lafayette. Not long after the truck left Crowley a very hard rain and windstorm arose, and when it reached the point mentioned on the highway, the motor stalled and the driver was unable to get it started again. He left it parked on the highway and went to Lafayette to secure assistance in getting it started. It was during his absence that plaintiff's car, traveling in the same direction in which the truck was headed, ran into the rear of it and the damage complained of was thereby occasioned.

It is alleged in plaintiff's petition, and shown to be a fact which is not disputed, that there was a young man riding with the driver, in the truck, and in addition to charging the driver with negligence in having left the truck parked on the highway without a taillight burning or placing other appropriate signal lights to warn approaching traffic, it is contended that this young man who remained seated in the cab during all the time the driver was away, could have warned the traffic of the truck's presence on the highway. Another particular in which the driver of defendant's truck is charged with negligence is in having parked the truck in violation of section 3, subdivision (a) of rule 15 of the state regulatory highway act (Act No. 21 of 1932) which requires a person who parks or leaves standing any vehicle on the highway, whether attended or unattended, to leave an unobstructed width of not less than 15 feet on the main-traveled portion of the highway, opposite the standing vehicle, for the free passage of other vehicles thereon.

As already mentioned, plaintiff's car, an Oldsmobile coach, practically new at the time, was being driven by his brother, A. F. Horn, Jr. They, with Mrs. Bernice Terrell, as a guest passenger, all occupied the front seat. Plaintiff alleges in his petition that as a result of the impact of his car with the truck, he was thrown violently forward in his car, his head striking the windshield and frame, and his knees the dashboard. He claims to have suffered severe lacerations of the forehead and scalp, injuries to his knees, broken teeth, and contusions over the body generally. For his pain and suffering and disfigurement resulting from the injuries, he claims damages in the sum of $ 5,250. For medical and other expenses incidental to his treatment, the sum of $ 119.75. He alleges that his car was almost completely demolished, but that he carried insurance on it for the full amount of the repairs beyond $ 50. The $ 50 deduction, however, he claims he is entitled to recover as damages, from the defendant. In addition thereto, he claims the sum of $ 10 for wrecker service, and, finally, he claims $ 80 for loss of time from his business. All told, therefore, the demand is for the sum of $ 5,509.75.

The answer of the defendant consists first of a denial that the truck driver was negligent and violated the provisions of the state highway act as alleged by plaintiff, and an affirmative defense that he left the truck parked with all signal lights, that is, two front lights, two clearance side lights, and one taillight burning, and that he was justified in leaving it parked on the paved portion of the highway after it became disabled in an emergency, under the provisions of section 3, subd. (c) of rule 15 of the state highway regulatory act hereinbefore mentioned; and, second, a plea of contributory negligence against the plaintiff which would bar his recovery even though defendant's truck driver be shown to have been negligent. The plea of contributory negligence is based on a charge that plaintiff's car was being driven and operated at a reckless and excessive rate of speed, considering the weather conditions, and that the driver either saw or should have seen the lights burning on the parked truck; that if he saw the truck and was not able to stop his car in time to avoid running into it, it was because he was not keeping the proper lookout and did not have the car under such control as to be able to stop it within the range of vision projected in front of him by his own headlights, to all of which negligence, plaintiff himself contributed by not keeping a proper lookout himself and by permitting the driver to operate his car in such manner under the conditions then existing.

The district judge did not assign written reasons for judgment, and we have no way of knowing on what basis he reached the conclusions on which he rendered the same. Inasmuch as he rejected the defendant's reconventional demand, he evidently found the driver of the truck negligent. Assuming that he found the truck driver negligent, he must have dismissed the plaintiff's demand on the ground that he was guilty of contributory negligence.

Plaintiff's contention that the truck driver violated that provision of the highway regulatory act which required him to leave an unobstructed clearance of 15 feet on the side of the main-traveled portion of the road opposite his truck, is supported by the testimony which is undisputed to the extent that the clearance, at the very most, was only 11 feet. Defendant's contention is that his case presented the exception to the requirement as provided for in section 3, subd. (c) of the very same rule which is to the effect that the provision shall not apply to a vehicle which becomes disabled on that portion of the highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving it in such position. There can be no doubt from the testimony appearing in the record that because of the weather...