Lacy v. Lucky

• Decision Date: 05 April 1932
• Docket Number: 4237
• Citation: 19 La.App. 743,140 So. 857
• Court: Court of Appeal of Louisiana — District of US
• Parties: LACY v. LUCKY ET AL

140 So. 857

19 La.App. 743

LACY v. LUCKY ET AL

No. 4237

Court of Appeals of Louisiana, Second Circuit

April 5, 1932

Rehearing Refused May 5, 1932.

Appeal from the Twenty-sixth Judicial District Court, Parish of Bossier.Hon. L. B. Duke, Special Judge.

Action by F. P. Lacy against George J. Lucky and Maryland Casualty Company.

There was judgment for plaintiff and defendants appealed.

Judgment amended and affirmed as to George J. Lucky, and reversed and dismissed without prejudice as to Maryland Casualty Company.

Reynolds Hamiter & Hendrick, of Shreveport, attorneys for plaintiffappellee.

Thatcher Browne, Porteous & Myers, of Shreveport, attorneys for defendants, appellants.

OPINION

PALMER, J.

Plaintiff brings this suit for damages to his automobile and for personal injuries resulting from a collision between his automobile and the automobile of defendant Lucky, which occurred on the Shreveport-Minden highway.

Plaintiff alleges that his car, while being driven in a westerly direction on the said highway, on his right-hand side of the road, in a careful manner, and at a moderate rate of speed, was run into and he was run over by defendant Lucky who was driving his automobile on said highway in an easterly direction, at a high, fast and reckless rate of speed, and on his lefthand side of the road; that the driver of his car, seeing that a head-on collision was inevitable, in an effort to avoid it swerved his car to the left but was hit by the car of defendant Lucky, resulting in damages to his automobile and to his person; that he could not have swerved to the right because there was a deep ditch on that side of the road which would have caused his automobile to turn over had he turned that way.

Plaintiff further alleges that his car was a new Ford coupe and was so badly damaged in the collision that it required repairs which were made at a cost of $ 363.25; that in the collision he was knocked unconscious from the injuries he received to his head, neck, face, back, pelvis, spinal cord and legs; that for said injuries and for shock and mental suffering and for loss of time and earning capacity, medicine, drugs and doctor's bills, he suffered damages in the sum of $ 22,500, making a total of $ 22,863.25, for damages to his car and for personal injuries he received.

Plaintiff makes the Maryland Casualty Companya party to this suit, alleging that defendant carried insurance with them to protect him against loss or damages that might be occasioned by the operation of his car.The casualty company filed an exception of no cause or right of action, which was referred to the merits.

Defendants answered, denying generally plaintiff's allegations of negligence, and averring that at the time of the collision and just prior thereto, plaintiff's car was being driven at a fast and reckless rate of speed; that at a certain point the driver of plaintiff's car suddenly and without warning turned to the (his) left, thereby bringing his car in front of the car of defendant Lucky in such a manner as to render it impossible for him to avoid a collision, and that whatever injuries plaintiff sustained were due entirely to his own fault in not having his car under proper control and in driving at a fast, reckless rate of speed, and in suddenly turning to the left, bringing his car in front of the car of defendant Lucky.

In the alternative, defendants pleaded contributory negligence on the part of plaintiff, barring his right to recover.

On these issues the case was tried, resulting in a judgment for plaintiff against both defendants in solido in the sum of $ 12,363.25.From that judgment defendants have appealed.

STATEMENT OF FACTS

The collision on which this suit is based occurred in the daytime, about 12 miles east of the city of Shreveport on what is commonly referred to in this section as the "Shreveport-Minden" highway.Plaintiff was traveling towards Shreveport (westerly direction) in a Ford coupe, which was practically new.He had picked up a lad said to be about 18 years of age, and, upon learning that he could drive, turned his car over to him.There is no dispute over the fact that plaintiff's car was being driven on the right side of the road until it swerved to the left just a moment or so before the collision.

Defendant Lucky was traveling towards Minden (easterly direction) in a Dodge coupe.He was doing his own driving.There was parked on the south side of the road (defendant's right) a Model T Ford, with about half the car on the pavement.The collision occurred a short distance west of the parked Ford.After the collision, plaintiff's car was found some few feet west of the point where the collision evidently happened.It was turned around, facing east.The car of defendant Lucky was found near the point of collision, sitting crosswise the road, facing north, with the front end near the center of the road.

Plaintiff contends that defendant Lucky was driving on the wrong side of the road at a rapid rate of speed and that his driver, seeing that Lucky appeared to be coming forward without any intention of turning back to the side of the road on which he was due to travel, in order to try to escape a collision, cut his car to his left, and as he did, defendant swerved his car to plaintiff's left, striking plaintiff's car near the center, causing the damages sued for.

Defendant Lucky contends that he was traveling on the right side of the road at a reasonable rate of speed and that the driver of plaintiff's car, traveling at a rapid rate of speed and apparently losing control of the car, suddenly swerved to his left--defendant's right--thereby bringing his car immediately in front of defendant's car on the south side of the road, making it impossible for defendant to avoid running into plaintiff's car.

OPINION

As we appreciate the situation on the proposition of liability, there are two principal questions presented for decision.They are:

1.Was defendant Lucky, just prior to the accident, driving his car on the wrong (his left) side of the road, thereby creating a hazardous situation, resulting in a sudden emergency that threatened the safety of plaintiff, making it necessary for him to take some steps to avoid what reasonably appeared to be an impending collision?

2.Confronting the hazard that faced him, if created by defendant, was plaintiff's driver negligent when he swerved to his left in order to try to avoid the collision?

There are other questions that enter, to some extent, into the consideration of this case, such as the speed at which both cars were traveling at the time or just prior to the collision; and if defendant was on the wrong side of the road, was he there through carelessness and indifference, or through necessity?

But the question that transcends all others is the one regarding the side of the road on which defendant Lucky was traveling at the time or just prior to the accident.We shall therefore consider that question first.

Plaintiff did not seem to know anything definite on this point.He was dozing at the time and aroused when his driver began blowing his horn.He then saw two cars in front of him, the parked Ford and the coupe driven by defendant Lucky.Lucky's car, he said, was headed towards his car at an angle across the road, his car having swerved to his left in the meantime.

C. W. Fisher, the driver of plaintiff's car, testified that he was driving on his right side of the road and that defendant Lucky, after passing a car, continued on the wrong side of the road until the wreck.

J. M. Plummer, who resides in Monroe, saw the collision as he was returning to his home from Shreveport.Defendant Lucky passed him just prior to the accident, and was from 100 to 150 yards ahead of him when the two cars collided.He says Lucky, after passing him, traveled on the left side, going east towards Minden, until he met, or just before he met, plaintiff's car, at which time plaintiff swerved to the south side of the road and about the same time Lucky likewise cut his car towards the south side of the road, whereupon the collision occurred.

Robinson Hilton, colored, who lived at Princeton, near where the accident occurred, after having ridden from Shreveport with another colored man who lives near the point where the accident happened, was standing on the roadside to catch another ride to his home, and saw the accident.He says defendant Lucky was traveling on the (his) left side of the road when the two cars were about to meet, at which time Lacy's car was cut to his left and Lucky, at the same time, cut his car to his right, bringing the two cars together in collision.

The defendant Lucky testified that he was not on the (his) left side of the road, but, on the contrary, was on his right side at the time and that the driver of plaintiff's car suddenly cut his car in front of him in a manner so as to make it impossible for him to avoid the collision.

The parties just named are the only persons who saw the movement of the cars just before they collided.All of them, except defendant Lucky, testified that Lucky was traveling on the wrong side of the road as he approached plaintiff's car.

The trial judge rendered a written opinion in the case.He did not discuss the testimony of each witness individually, but gave a statement of his findings on the facts.That statement is as follows:

"The Court sees no good reason for taking up the testimony of each witness and commenting at length on same, as that is all in the record, but will simply state the Court's findings on the facts, as follows: The Court believes it has been proven by a preponderance of evidence, that the Lacy car was being driven in a careful and prudent manner, on its right hand side of...