Independent Oil Refining Co. v. Lueders

• Decision Date: 11 May 1931
• Docket Number: 13,617
• Citation: 134 So. 418,17 La.App. 154
• Court: Court of Appeal of Louisiana — District of US
• Parties: INDEPENDENT OIL REFINING CO. v. LUEDERS

134 So. 418

17 La.App. 154

INDEPENDENT OIL REFINING CO. v. LUEDERS

No. 13,617

Court of Appeals of Louisiana, Orleans

May 11, 1931

Rehearing Refused June 8, 1931.

Appeal from the Twenty-fourth Judicial District Court, Parish of Jefferson. Hon. L. Robert Rivarde, Judge.

Action by Independent Oil Refining Company against Richard Lueders.

There was judgment for defendant and plaintiff appealed.

Judgment reversed.

Henry W. Robinson, Waverly A. Henning and Henry M. Robinson, of New Orleans, attorneys for plaintiff, appellant.

Julius Howard Wiener and Sidney G. Roos, of New Orleans, attorneys for defendant, appellee.

OPINION

JANVIER J.

A Chevrolet coupe belonging to plaintiff partnership was damaged as the result of being run into by a truck owned and operated by defendant.

The Chevrolet was proceeding down North Prieur street towards Esplanade avenue and the truck was on its way in Esplanade avenue towards the Mississippi river. When the Chevrolet which was proceeding to the right of the street on which it was being driven, had reached a point about 20 or 25 feet from Esplanade avenue, the truck dashed around the corner and crashed into it.

Defendant contends that the accident, from his point of view, was unavoidable for the reason that, as he was proceeding in Esplanade avenue, a sudden emergency was created by the negligent act of the driver of a third car, a Ford, which attempted to cross Esplanade avenue directly in his path, and that, in order to avoid striking the Ford, he hurriedly swerved his car to the right, hoping to be able to turn into North Prieur street and avert a collision with the Ford.

It is quite true that it has often been held that one who acts in a sudden emergency may not be responsible for the results of his act and cannot be expected to exercise the discretion and judgment which would be exhibited by an ordinarily prudent person acting with deliberation. Buckner v. Powers, 12 La.App. 630, 125 So. 744; Kennedy v. Opdenweyer, 11 La.App. 532, 121 So. 636, 123 So. 906.

But it is also true that the doctrine to which we have just referred is not available to one who himself contributes to the creation of the sudden emergency, nor can it be taken advantage of by one who, though he may not have contributed to the creation of the emergency, could have avoided the unfortunate result had he himself been acting carefully. Southall v. Smith, 151 La. 967, 92 So. 402, 27 A. L R. 1194; Dill v. Colley, 3 La.App. 305; Berry (6th Ed.) sec. 229; Blashfield, page 277; Huddy (8th Ed.) sec. 447; Anderson v. Davis, 151 Minn. 454, 187 N.W. 224; Simonson v. Huff, 124 Wash. 549, 215 P. 49.

Here, it is very apparent that the speed of defendant's truck was excessive. The skid marks on the pavement and the distance the truck ran after the danger became apparent show conclusively that, had the car been operated at a reasonable speed, even after the emergency came into existence, it could have been stopped before striking plaintiff's car.

The driver of plaintiff's car was in no way at fault, and therefore, whatever may have been the fault of the driver of the Ford which caused defendant to swerve from his course, he (defendant) was negligent...