Landrum v. New Amsterdam Cas. Co.

• Decision Date: 28 January 1963
• Docket Number: No. 758,758
• Citation: 149 So.2d 182
• Parties: Marshall LANDRUM, Plaintiff-Appellant, v. NEW AMSTERDAM CASUALTY COMPANY et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 182

149 So.2d 182

Marshall LANDRUM, Plaintiff-Appellant, v. NEW AMSTERDAM CASUALTY COMPANY et al., Defendants-Appellees.

No. 758.

Court of Appeal of Louisiana, Third Circuit.

Jan. 28, 1963.

Polk, Foote & Neblett, by Robert B. Neblett, Jr., and George M. Foote, Alexandria, for plaintiff-appellant-appellee.

George J. Ginsberg and John M. Sherrill, III, Alexandria, for defendants-appellees-appellants.

Carl F. Walker, Monroe, for defendants-appellees.

Before TATE, FRUGE and SAVOY, JJ.

SAVOY, Judge.

This is an action for personal injuries sustained by plaintiff's minor daughter, Sally Landrum, and for medical expenses incurred by him on behalf of the minor, resulting from a collision between a 1960 model Dodge stationwagon, owned by plaintiff and being driven by his wife, Mrs. Irble Landrum, and an Oldsmobile automobile owned and being driven by defendant, Anthony DeBona. Plaintiff alleges that both drivers were guilty of concurring negligence and named as defendants, Anthony DeBona and his insurer, New Amsterdam Casualty Company, and the insurer of the plaintiff's stationwagon, Grain Dealers Mutual Insurance Company.

After disposition of certain exceptions and trial on the merits, judgment was rendered in favor of plaintiff, individually, in the amount of $2,456.20, and for the use and benefit of his minor daughter, Sally Landrum, in the amount of $8,000.00; and against defendants, Anthony DeBona and New Amsterdam Casualty Company, in solido. The judgment against New Amsterdam Casualty Company was limited to the amount of its policy of $10,000.00. Plaintiff's demands against Grain Dealers Mutual Insurance Company were rejected.

Plaintiff appealed and defendants, Anthony DeBona and New Amsterdam Casualty Company, also appealed. Plaintiff then filed an answer to the appeal, asking for an increase in the awards made by the district court.

The issues before us on appeal involve whether the driver of each vehicle was negligent; whether such negligence, if any, was the proximate cause of the accident; and, the quantum awarded.

Certain basic facts are not in dispute. The collision occurred approximately 11:15 A.M. on July 14, 1960, at the intersection of Madison and Sixth Streets in Alexandria, Louisiana. The two (2) streets are paved and intersect at a 90-degree angle. Madison Street is a one way street, with two (2) north-bound lanes, plus an additional lane for parking on the east side. Sixth Street is a two way street. There are stop signs which favor Madison Street as the through street. Also, a blinking traffic light is suspended over the intersection, indicating red for traffic along Sixth Street and yellow for traffic along Madison Street. Buildings are located near all four (4) corners.

Sally Landrum was seated in the right front seat of the stationwagon which was being driven by her mother, Mrs. Irble Landrum, in a northerly direction along Madison Street in the left or west lane of traffic. Anthony DeBona was alone as he drove his Oldsmobile in an easterly direction along Sixth Street and approached the intersection.

The two (2) vehicles collided within the intersection, with the major damage to the vehicles being the left front portion of the Landrum stationwagon and the right front side of the DeBona automobile, at the right front wheel. After the initial impact, the vehicles slammed together and then skidded to rest with the stationwagon stopping near the northwest corner of the intersection, and the DeBona automobile stopping north of the intersection against a building on the east side of Madison Street, with three (3) wheels on the sidewalk.

With respect to liability, the defendants, Anthony DeBona and New Amsterdam Casualty Company, maintain that the trial court was in error in holding that Anthony DeBona was guilty of negligence which was the proximate cause of the accident.

This contention is based upon his testimony that he stopped for the stop sign; looked carefully for traffic; and then proceeded into the intersection, where his car stalled as it had cleared, or almost cleared, the west half of Madison Street. He testified that he stayed in this position, trying to start his car for a period of about two (2) minutes, before he was struck by the stationwagon.

On the other hand, Mrs. Landrum testified that she was driving in the left lane along Madison Street at twenty (20) to twenty-five (25) miles per hour, and that when she approached the intersection, the DeBona automobile suddenly darted out in front of her, traveling at a fast rate of speed.

Her testimony is corroborated by the testimony of the police officers and the photographs. The debris in the street and skid marks indicated that the point of impact was near the center of the intersection. The skid marks or tire marks showed that after the impact, the DeBona vehicle swerved to its left and skidded approximately fifty (50) feet before it stopped, and the stationwagon skidded to the right for a distance of approximately twenty (20) feet.

After a careful examination of the record, we agree with the trial court that the version of the accident given by Anthony DeBona is not substantiated by the facts of the case. The evidence is overwhelming that the point of impact was near the center of the intersection, and the DeBona automobile was moving at the moment of impact. We agree with the finding of the trial court that Anthony DeBona drove his automobile into the intersection in a negligent manner, against both a stop sign and a blinking red semaphore signal, into the path of the oncoming Landrum stationwagon. We also find that the facts do not show that Anthony DeBona had pre-empted the intersection.

In connection with the issue as to whether Mrs. Landrum was guilty of negligence, plaintiff urges that she violated two (2) city ordinances, one which fixes the speed limit at twenty-five (25) miles per hour, and another which requires drivers approaching a caution or blinker light at an intersection to slow down and bring their vehicle under complete control so as to be able to come to an immediate stop. However, an examination of the record reveals that plaintiff did not plead the violation of these municipal ordinances, either in his original or supplemental petition, and, therefore, any such violation as contended cannot be considered as an issue before this Court. Nor do we find that the introduction of any evidence had the effect of enlarging the pleadings since all of the evidence introduced was related to the issues raised by the pleadings.

In view of this holding, it will not be necessary for us to rule on whether or not these ordinances were tendered in proper form to be filed with the Clerk of this Court under the provisions of LSA-R.S. 13:3712.

Plaintiff, as well as the defendants, Anthony DeBona and New Amsterdam Casualty Company, maintain that the trial court was in error in not finding Mrs. Irble Landrum guilty of negligence which was a proximate cause of the accident. They urge that she failed to keep a proper lookout; that she did not have her car under proper control; and was driving at an excessive rate of speed; that she did not apply her brakes although she had ample time; and that she did nothing to prevent the accident after she observed, or should have observed, that the other automobile was not going to stop at the stop sign at the intersection.

This case is unusual in that the intersection where the accident occurred is controlled not only by the stop signs, but also by a blinking semaphore signal.

Since none of the Louisiana cases cited in the briefs involved an intersection which is controlled by both stop signs and a blinking semaphore traffic light, we must first determine the respective duties of the drivers approaching such an intersection.

The driver on the inferior street must, of course, stop for the stop sign and yield right-of-way to the traffic approaching the intersection on the favored street. In view of the stop signs, the motorist on the right-of-way street, with knowledge of such stop signs, has a right to assume that any driver approaching the intersection from the less favored street will observe the law and bring his vehicle to a stop before entering the intersection, and such motorists can indulge in this assumption until he sees, or should see, that the other car has not observed or is not going to observe the law.

We believe, however, that the blinking yellow light at the intersection added an additional duty on the driver approaching on the right-of-way street and that duty is to approach the intersection with caution commensurate to the situation. Such a blinking traffic light would indicate to any reasonable person that...