Howard v. Fidelity & Cas. Co. of New York

• Court: Court of Appeal of Louisiana
• Writing for the Court: FRUGE; HOOD
• Citation: Howard v. Fidelity & Cas. Co. of New York, 179 So.2d 522 (La. App. 1965)
• Decision Date: 27 October 1965
• Docket Number: No. 1505,1505
• Parties: Waple G. HOWARD and Mrs. Mary H. Semon, Plaintiffs-Appellants, v. FIDELITY & CASUALTY COMPANY OF NEW YORK et al., Defendans-Appellants.

Page 522

179 So.2d 522

Waple G. HOWARD and Mrs. Mary H. Semon, Plaintiffs-Appellants, v. FIDELITY & CASUALTY COMPANY OF NEW YORK et al., Defendans-Appellants.

No. 1505.

Court of Appeal of Louisiana, Third Circuit.

Oct. 27, 1965.

Rehearing Denied Nov. 17, 1965.

Blanchard, Walker, O'Quin & Roberts, by Joseph W. Milner, Shreveport, La., for defendant-appellant, Fidelity & Casualty Co. of New York.

E. L. Edwards, Jr., Many, for defendant-appellee, Horace M. Howard .

Booth, Jack, Pleasant & LeSage, by L. L. Lockard, Shreveport, for plaintiffs-appellants-appellees.

Cook, Clark, Egan, Yancey & King, by Benjamin C. King, Shreveport, for defendant-appellee, Employers Fire Insurance Company.

Before FRUGE, HOOD and CULPEPPER, JJ.

FRUGE , Judge.

This is a consolidated tort action which arose out of a collision between a 1953 Chevrolet pickup truck owned and operated by Horace M . Howard and a 1963 Chevrolet automobile owned by Grand Bayou Oil Company driven by Roger A. Wilson, employee. The accident occurred at about 9:30 A.M. on August 23, 1963, at the intersection of what is known as the Haley Driveway and Highway No. 175 in the Village of Belmont. The plaintiffs are Waple G. Howard and Mrs. Mary Howard Semon, the only children of Ophelia Campbell Howard, who was fatally injured in the accident and died September 13, 1963, as a result thereof, and Horace M. Howard, husband of the deceased. The defendants are Fidelity & Casualty Company of New York, public liability insurer of the Grand Bayou Oil Company, and the Employers Fire Insurance Company, the public liability insurer of the motor vehicle driven by Horace M. Howard. The two defendants filed exceptions of nonjoinder on the grounds that Horace M. Howard was an indispensable party to the suit, and subsequently he intervened as a party plaintiff in the suit. There was judgment in favor of the plaintiffs against the Fidelity & Casualty Company. The district court found Horace M. Howard free from fault, so there was judgment in favor of the Employers Fire Insurance Company rejecting the demands of Waple G. Howard and Mrs. Mary H. Semon.

The evidence shows that the Chevrolet truck owned and driven by Horace M. Howard was proceeding northerly on Highway 175 and while engaged in making a lefthand turn from Highway 175 to Haley's driveway, was struck on the right front side by the vehicle driven in a southerly direction by Roger Wilson. Plaintiff contends that prior to making his turn he had looked to the north and to the west and the highway was clear for 500 to 550 feet ahead. He made a slow gradual left turn, giving a hand signal indicating his left turn. Defendant contends that plaintiff's vehicle did not attempt a left hand turn until defendant's insured vehicle was approximately 125 feet away. In the alternative, defendant alleged contributory negligence on the part of Howard.

Highway 175 curves to the left or to the northwest at some distance north of the point of impact. The evidence indicated that the curve was approximately 500 feet north of the collision site, although an automobile approaching from the north could be seen some distance beyond the beginning of the curve not to exceed 575 feet. Because of a fence and underbrush, vision of the collision site for a motorist traveling south around the curve was obstructed to a point somewhere 500 and 575 feet north thereof. Wilson and Marvin Austin, a witness for the defendant, both testified that Wilson's car had a speed of at least 60 miles per hour until Wilson applied the brakes 90 feet north of the collision site. After Wilson applied his brakes his car skidded about 90 feet and knocked the Howards' truck sideways about 25 or 30 feet into a ditch and the Wilson car continued on an additional 10 or 15 feet.

Plaintiff Howard testified that when he began his gradual left turn the highway to the north was clear of traffic and he did not see the Wilson vehicle until it was approximately 90 feet from him. This testimony was corroborated by the only other survivor of the Howard truck, Edward E. Campbell, Jr., nephew of Howard.

It is the opinion of this court that when Wilson came around the curve into the Village of Belmont his vision was obstructed by the fence and underbrush until he reached a point 500 to 575 feet north of the point of impact. The trial court concluded that Wilson proceeded around the curve at a rate of speed in excess of what prudence should have dictated.

Defendants strongly urge that Howard was contributorily negligent in making a slow gradual left turn from the east lane of Highway 175 across the left lane of said highway.

The execution of a left turn is a hazardous undertaking, and the law imposes on the driver attempting such the duty of extreme caution. LSA-R.S. 32:101(2) requires that an approach for a left turn from a two-way highway must be made on the righthand side of the highway and that the turn must not be made until reaching the intersection. The reason for this is obvious. If a motorist starts his left turn across a highway at a distance of as much as 90 feet, as in this case, before reaching the intersection, he is in effect traveling down the wrong side of the highway for some distance. The present case is a classic example of such a danger. Howard was approaching an intersection where he could not see more than 500 feet beyond the intersection because of the curve. Yet 90 feet before Howard reached the intersection he partially crossed over into the wrong side of the road and went very slowly, 10 or 15 miles per hour in low gear, up to the driveway.

Howard, in attempting his left hand turn in this manner, placed himself and the occupants of his truck in a perilous situation.

It is our opinion, however, that even with the contributory negligence of Howard, the driver of the other vehicle (Wilson) could have avoided the accident by either stopping or passing to the rear of the slow moving truck after he saw, or should have seen, the Howard truck in the west traffic lane.

In order to apply the last clear chance doctrine, three elements must be proven:

(1) That the plaintiff was in a position of peril of which he was unaware or from which he was unable to extricate himself;

(2) That the driver of the other motor vehicle actually discovered, or was in a position where he should have discovered, the plaintiff's peril; and (3) That, at the time, the driver of the motor vehicle, with the exercise of reasonable care, could have avoided the accident.

Both Howard and his nephew testified that when his gradual left turn was begun the Wilson car was not in sight. Wilson testified that when he rounded the curve he saw that the Howard truck was in the process of turning left 500 feet south of his vehicle. Wilson further testified that he did not immediately lock his brakes, thinking that the Howard truck had sufficient time to make the turn. The physical evidence was that there were skid marks only 90 feet from the point of impact. This indicates to this court that Wilson waited too long in applying his brakes, wishfully in the belief that Howard's truck would navigate the turn successfully.

In Lanaux v. Marquette Casualty Company, La.App., 162 So.2d 823, the court said:

'Under the last clear chance and discovered peril doctrine a motorist who observes or who should, by the exercise of reasonable care, have observed another in a position of peril may be held responsible for an ensuing collision with the other, despite any contributory negligence on the part of the latter, if, after the duty to make such observation arose, the motorist could reasonably have avoided the accident. Belshe v. Gant, 235 La. 17, 102 So.2d 477; Rottman...