Johnigan v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 13 May 1977
• Docket Number: No. 5969,5969
• Citation: 345 So.2d 1277
• Parties: James G. JOHNIGAN, Jr., et ux., Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 1277

345 So.2d 1277

James G. JOHNIGAN, Jr., et ux., Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al Defendants-Appellees.

No. 5969.

Court of Appeal of Louisiana, Third Circuit.

May 13, 1977.

Ford & Nugent by Howard N. Nugent, Jr., Alexandria, for plaintiffs-appellants.

Gist, Methvin & Trimble by David A. Hughes, Alexandria, for defendants-appellees.

Before WATSON, FORET and HEARD, JJ.

HEARD, Judge.

James G. Johnigan, Jr. and his wife, Deborah Johnigan, brought this suit on their own behalf and on behalf of their minor son, James G. Johnigan, III, to recover damages for personal injuries allegedly received by James G. Johnigan, Jr., his wife, Deborah Johnigan, and his son, James G. Johnigan, III, and damages incurred by the community of acquets and gains resulting from an automobile accident on November 2, 1975 about one mile north of Natchez, Louisiana on Highway 1. Named defendants in the suit are John Richard McCann and his insurer State Farm Mutual Automobile Insurance Company.

Defendants answered denying any liability and expressly averred in the alternative the contributory negligence of James G. Johnigan, Jr . A trial on the merits resulted in a judgment in favor of the defendants. The trial court found that the plaintiff was confronted with a sudden emergency not of his own making which was the cause of the accident. The plaintiffs have appealed the judgment of the trial court.

The plaintiffs assert that the trial court erred in: (1) Failing to impose a legal presumption of negligence upon the defendant, McCann, (2) finding that McCann exculpated himself from ordinary negligence and that the trespassing motorist had satisfied the burden, by convincing proof by showing that he wasn't guilty of any dereliction, however slight, which may have had a casual connection to the accident, and (3) failing to award damages to the plaintiffs.

The record reveals that defendant McCann was traveling north on Highway 1 approximately one mile north of Natchez, Louisiana on November 2, 1975, at approximately 2:45 P.M. Traveling in front of him was a tractor-trailer unit, commonly known as an '18 wheeler'. In front of the '18 wheeler' was a pickup truck towing a trailer used in hauling cotton. James G. Johnigan, Jr., his wife, Deborah, and their minor son, Johnigan III, were returning to Alexandria, Louisiana from Shreveport via Highway 1 South. They were unfamiliar with Louisiana highways so they pulled off the highway on the shoulder of the road to consult a road map. At the time of the accident, the weather was clear and visibility was good. The defendant followed the 18 wheeler for some distance at a slow rate of speed until the southbound lane cleared of oncoming traffic and the highway straightened. The defendant McCann observed the Johnigan vehicle parked on the side of the road but it was off the highway and there was room to pass the tractor-trailer unit in front of him. McCann put on his left blinker and attempted to pass the 18 wheeler. When his vehicle was one-half to one-third past the trailer unit, the operator of the tractor-trailer combination, in attempting to pass the vehicle preceding it, pulled into the southbound or passing lane. McCann, in order to avoid a collision with the 18 wheeler, simultaneously applied his brakes and sounded his horn, and was forced off the highway where his automobile immediately collided with the Johnigan vehicle, causing the injuries complained of in this action.

The plaintiff asserts that the trial court failed to impose a legal presumption of negligence upon the defendant McCann.

In stating the duties of a motorist traveling on the right side, overtaking and passing, the Highway Regulatory Act of the State of Louisiana LSA-R.S. 32:71, 32:73 and 32:75 read and follows:

'71. Driving on right side of road; exceptions

A. Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:

(1) When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement;

73. Passing on the left.

A. The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to those limitations, exceptions, and special rules hereinafter stated;

(1) Except when overtaking and passing on the right is permitted, the driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass on the left side thereof at a safe distance, and shall not again drive to the right side of the roadway until safely clear of the overtaking vehicle;

(2) Except when overtaking and passing on the right side is permitted, the driver of the overtaking vehicle shall give way to the right in favor of the overtaking vehicle on audible signal, and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.

'75. Limitations on passing to the left.

No vehicle shall be driven on the left side of the center of the highway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the righthand side of the roadway before coming within one hundred feet of any vehicle...