Laird v. Travelers Ins. Co.

• Decision Date: 13 July 1971
• Docket Number: No. 3531,3531
• Citation: 251 So.2d 73
• Parties: Marshall LAIRD et ux., Plaintiffs-Appellees, v. TRAVELERS INSURANCE COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 73

251 So.2d 73

Marshall LAIRD et ux., Plaintiffs-Appellees, v. TRAVELERS INSURANCE COMPANY, Defendant-Appellant.

No. 3531.

Court of Appeal of Louisiana, Third Circuit.

July 13, 1971.

Rehearings Denied Aug. 16, 1971.

Writs Granted Oct. 18, 1971.

Holt & Woodley, by Edmund E. Woodley, Lake Charles, for defendant-appellant.

Navarre & Fuselier, by John P. Navarre, Oakdale, for plaintiffs-appellees.

Gist, Methvin & Trimble, by David Hughes, Alexandria, for defendant-appellee.

Before SAVOY, CULPEPPER and MILLER, JJ.

MILLER, Judge.

Plaintiffs' westbound parked pickup truck was blocking about half the westbound lane of a blacktop country road. The overtaking westbound motorist was insured by Travelers Insurance Company. Their insured failed to see the pickup truck in time and rearended it at high speed. The trial court awarded damages to the pickup truck driver and his guest passenger wife, finding that the negligence of the overtaking motorist was the sole legal cause of the accident. We find that the pickup truck driver's negligence in blocking a part of the road was a legal cause of the accident, but that the overtaking motorist had the last clear chance to avoid the accident. We affirm in part and reverse in part.

Travelers does not seriously urge that their insured was free from negligence, but they do contend that the pickup truck driver was contributorily negligent in violating LSA-R.S. 32:141(A). Additionally, Travelers filed a third party demand against the pickup truck driver and his insurer, State Farm Mutual Automobile Insurance Company, seeking one-half of any award made to the guest passenger.

At about noon on the clear dry day of November 22, 1968, plaintiff Marshall Laird was driving his 1968 Dodge pickup truck west on Louisiana Highway 12. The road is blacktopped to a width of twenty feet and has narrow shoulders. The area where this accident occurred was described as 'hilly' 'like a roller coaster.' When Laird reached a point about ten miles east of DeRidder, he saw three large highway signs on the shoulders of the road stating 'ROADWORK AHEAD' and 'MEN WORKING'. These signs were about three feet wide by four feet tall and each had a red flag on top. These signs were posted just east of the crest of a slight hill. At least 600 feet (the trial court found the distance to be 900 feet) to the west of the crest of this hill, a Louisiana Highway Department crew was installing some baffles or headers in the north ditch beside the highway.

Laird stopped to get directions from the work crew and then spent about five minutes visiting with the foreman of the crew. He turned off the motor of his pickup truck, but left his foot on the brake so that his brake lights were on. There is a substantial dispute as to how much of the pickup truck was on the blacktop. We find no manifest error in the trial court's conclusion that the pickup truck was half on the blacktop and half on the shoulder. The shoulder was not wide enough to park any farther to the right. However, Laird could have parked on a gravel parish road located within forty feet of his parked position.

When Laird stopped, the foreman walked in a southerly direction from the north ditch to shake hands with Laird and they conversed. While in this position, one car approached from the west and one from the east. Neither had any difficulty in passing. The foreman was watching for traffic and heard defendant's insured International Van Truck (which was pulling a U--Haul trailer) approaching from the east. The foreman watched the fast approaching truck and detected that it was not changing direction or speed. He moved to the south shoulder while at the same time hollering and waving his hands in a vain attempt to attract the attention of the Van Truck driver. The driver did not react until just before impact at which time the brakes were applied and he turned slightly to his left.

The impact knocked the pickup truck a distance of 150 feet across a ditch and into the woods. The empty Van Truck continued on for a distance of 74 feet after impact. The empty trailer traveled in and along the south ditch and came to rest some distance beyond the resting place of the Van Truck.

The Van Truck driver testified that he was driving 55 mph. He pled guilty to speeding 65 mph. He was late for a noon appointment in DeRidder. He failed to see the highway signs at the crest of the hill. At that time he was looking in his rear view mirror to see if his co-employee's following Van Truck was still in sight. He admitted that he could have been looking in the mirror for as long as three seconds. On direct examination at Tr. 258, he was asked:

'Q. Do you think if you hadn't looked back, there would have been an accident?

A. There's a possibility that there might not have been. I'm reasonably sure that there might not have been.

Q. You're reasonably sure?

A. Yes, sir. I might have seen the truck in time to stop.'

Had this driver seen what he should have seen, he would have had time to move to his left and pass the parked pickup truck with ease.

The Van Truck driver admitted that there was no oncoming traffic and that it was a clear day with good visibility. His negligence in failing to see the white pickup truck with it's brakelight on a clear distance of at least 600 feet was gross negligence. His failure to see the Highway Department warning signs posted near the crest of the hill (some 750 to 900 feet away) and his failure to see the foreman waiving his hands as he moved from the center of the road to the south shoulder further compound his negligence. All are legal causes of this accident.

The trial court committed manifest error in holding that Laird was free from negligence. He violated LSA-R.S. 32:141(A) which provides:

'Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such park of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of two hundred feet in each direction upon such highway.'

Laird's violation of this statute was a Substantial factor contributing to this accident, and his negligence was a legal cause of the accident. Dixie Drive it Yourself System New Orleans Co. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1971).

Laird's negligence does not bar his recovery because the overtaking Van Truck driver had the last clear chance to avoid this accident. Under this doctrine a defendant motorist is liable for injury to a plaintiff, despite contributory negligence on the latter's part, if an accident occurs when (1) the plaintiff was previously in a position of peril, of which he was either apparently unaware or else from which he could not extricate himself, (2) the defendant discovered, or could reasonably have observed, the plaintiff's danger and (3), thereafter, could have reasonably avoided the accident. Price v. Watts, 215 So.2d 187, 189 (La.App.3d Cir. 1968).

Laird was in no danger until it became apparent that the overtaking Van Truck driver did not see the stopped pickup truck. At that time, it was impossible for Laird to extricate himself from his position. The overtaking motorist had ample time to observe the danger and thereafter could have easily avoided the accident. Assuming that he was driving at his stated speed of 55 mph, he was traveling 81 feet per second. He should have seen the warning signs at least twelve seconds before impact. He should have seen...