Laborde v. Louisiana Dept. of Highways

• Decision Date: 11 September 1974
• Docket Number: No. 4655,4655
• Citation: 300 So.2d 579
• Court: Court of Appeal of Louisiana — District of US
• Parties: Harold LABORDE et ux., Plaintiffs-Appellees, v. LOUISIANA DEPARTMENT OF HIGHWAYS, Defendant-Appellant.

Page 579

300 So.2d 579

Harold LABORDE et ux., Plaintiffs-Appellees, v. LOUISIANA DEPARTMENT OF HIGHWAYS, Defendant-Appellant.

No. 4655.

Court of Appeal of Louisiana, Third Circuit.

Sept. 11, 1974.

Rehearing Denied Oct. 10, 1974.

Writ Refused Nov. 22, 1974.

Jonathan C. Harris, Baton Rouge, for defendant-appellant.

E. M. Nichols, Lake Charles, for plaintiffs-appellees.

Before HOOD, MILLER and DOMENGEAUX, JJ.

HOOD, Judge.

This is a suit for damages instituted by Mr. and Mrs. Harold Laborde against the Louisiana Department of Highways, arising out of a motor vehicle accident allegedly caused by a defect in a state highway on which plaintiffs were traveling. The trial court rendered judgment in favor of plaintiffs, and defendant appealed. We reverse.

The principal issues presented are: (1) Did a potentially dangerous defect exist on the highway? (2) Was that defect a proximate cause of the accident? (3) Did defendant have actual or constructive knowledge of the hazardous condition? (4) Was the driver of plaintiffs' automobile negligent?

The accident occurred about 6:10 P.M., during daylight hours, on October 9, 1970, on Louisiana Highway 111, in Vernon Parish. The highway at that point was a two-lane, blacktopped thoroughfare, about 18 feet and six inches wide. The weather was clear and visibility was good at that time.

Mrs. Laborde was driving a community owned 1963 Buick automobile west on the above highway, and the automobile was towing a relatively large community-owned travel trailer or house trailer which had a separate braking system. Mr. Laborde was asleep on the front seat of the car. As Mrs. Laborde rounded a slight curve to her left, while driving at a speed of 25 or 30 miles per hour, the right front wheel of her car ran off the north edge of the blacktopped portion of the road. She then lost control of her car, and the trailer jackknifed and eventually turned over on the automobile. No personal injuries were sustained, but plaintiffs claim damages for the loss of the trailer and of the automobile.

Mrs. Laborde testified that she saw a hole on the right or north edge of the blacktopped slab when she was about five feet from it, that she was unable to avoid striking it, and that when that occurred the car 'jerked,' and as she was trying to control it the 'trailer swung some way or other,' and 'all of a sudden' it turned over and came to rest 'upside down on top of the car.' She insists that all of the wheels of the automobile and trailer remained on the blacktopped slab from the moment her car struck the hole in the highway until the vehicles came to rest, and that the right wheels of those vehicles did not at any time travel on the shoulder of the highway. She estimated that both vehicles traveled a distance of less than 100 feet after her car struck the hole in the pavement, and that they came to rest within that distance from the defect in the highway.

Mrs. Laborde described the alleged defect in the highway as being a 'hole' or a 'depression' on the north edge of the blacktopped slab, 'like the blacktop had just broken off.' She judged it to be about 18 inches wide and at least one foot deep. She had traveled the road quite a few times before. She stated that she had been driving slow because she knew that the road was 'not in good shape,' that she had 'passed places in the road' which gave her warning that she 'might run into more ahead,' and that she usually tried to keep her car in the center part of her half of the highway because she didn't want to get 'too far to the edge.' She said that the sun was shining brightly, and that she was 'driving directly into the sun,' indicating that her vision of the road ahead was affected by the sum . She reasoned that the highway defect which she described and which she photographed the next day was the one which her car had struck, because 'it was right behind us there and of course I felt it when the car hit into this hole.'

Mr. Laborde testified that he woke up when the car hit the bump, that he looked back and saw the trailer in a jackknifed position, that he told his wife not to apply the brakes, and that 'about that time' the trailer fell onto the car. He estimated that the car and trailer came to rest at a point about 100 feet west of or beyond the alleged defect in the highway.

State Trooper E. R. Smart, who investigated the accident, testified that the tracks of the vehicles showed that the right wheels of plaintiffs' automobile and the right wheels of their trailer ran off the north edge of the pavement at a point where there was a 'long jagged edge off in the highway,' that the right wheels of those vehicles continued to travel on the north shoulder of that road for a distance of 95 feet, and that the automobile was then turned to the left onto the blacktopped slab, and that both vehicles, the car and the trailer, then got back on the paved slab at that point. He stated that the automobile-trailer combination then traveled west on the pavement for a distance of 390 feet from the point where the automobile was driven back onto the blacktopped slab up to the point where the trailer overturned. The automobile and trailer thus traveled a distance of 485 feet after the car ran off the pavement and before the trailer overturned. There is no indication that the trailer swerved or skidded, or that the automobile was out of the driver's control, at any time while it traveled 95 feet with its right wheels on the shoulder. The tracks on the highway showed, however, that the trailer began swerving after the vehicles got back on the praved portion of the highway, and that it continued to swerve until it overturned. The plaintiffs apparently do not question the measurements made by the State Trooper, since Mr. Laborde admits that he was present at the time of the investigation and that he observed the trooper making these measurements.

The testimony of two officials of the State Highway Department established that an average of 809 vehicles per day regularly travel over the part of the highway where this accident occurred. No accidents have ever occurred at that site, and no complaints have even been made as to the condition of the road there. The maintenance supervisor for the Highway Department in that area checks the highway for defects every ten days, and he has never noticed a defect in the highway in the area where this accident occurred. No one has ever informed him or anyone in his office that the highway was defective there. He testified that a crew would have been dispatched immediately to investigate and to make repairs if information had been received at any time as to a defect or a hazardous condition of the highway. No repairs were made to this part of the highway until sometime in March, 1971, approximately five months after this accident occurred, when routine repair work was done, including an evening up of the edges of the highways. The highway officials testified that although the edges of the blacktopped slab were not kept absolutely even, they attempt to maintain enough regularity so that there will not be a variance of more than from two to four inches in the width of a lane on the highway, and they endeavor to see that neither lane is ever reduced to a width of less than nine feet.

Mrs. Laborde took photographs of the site of the accident on the day after it occurred. These photographs show that the north edge...