Lavergne v. Indemnity Ins. Co.

Citation84 So.2d 617
Decision Date30 December 1955
Docket NumberNo. 4106,4106
PartiesJoseph H. LAVERGNE v. INDEMNITY INSURANCE CO.
CourtCourt of Appeal of Louisiana — District of US

Fusilier & Vidrine, Ville Platte, for appellant.

Dubuisson & Dubuisson, Opelousas, for appellee.

ELLIS, Judge.

Plaintiff is seeking to recover alleged damages to his 1941 Studebaker, sedan as the result of a collision with a 1941 Ford Coupe owned by Lucy Auzenne which occurred after dark on January 25, 1954 on blacktopped Louisiana Highway, No. 219. It was shown on the trial below that on the date above set forth the plaintiff was driving his Studebaker sedan in an esterly direction on the blacktopped highway when he noticed approaching him or stopped, a motor vehicle with only its right light burning. The plaintiff approached this aparently one lighted motor vehicle at 30 miles per hour but pulled as far to his right as possible without running off on the black top, then, when it was too late to avoid the accident plaintiff observed that there was a car with a portion of its front end across the center line in his lane of travel and what he had been taking as a motor vehicle approaching or stopped with only one light was, in reality, a pickup truck parked to the rear of the stationary motor vehicle so that the left light of the pickup was hidden by the parked motor vehicle.

It was plaintiff's contention in the Lower Court as well as in this Court that the case came under the exception to the general rule that one must operate his vehicle at night at such a speed that he is able to bring it to a halt within the distance illuminatged by his headlights. Plaintiff relies upon Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377; Taylor v. Fidelity & Casualty Co. of New York, La.App., 55 So.2d 307; Achord v. Great American Indemnity Co., La.App., 68 So.2d 643; Woodley & Collins v. Schulsters' Wholesale Produce Co., 170 La. 527, 128 So. 469; Louisiana Power & Light Co. v. Saia, 188 La. 358, 177 So. 238; Warnick v. Louisiana Highway Commission, La.App., 4 So.2d 607; Central Manufacturers Mutual Insurance Co. v. Linkenhoger, La.App., 41 So.2d 472.

Judgment was redered in favor of defendant dismissing plaintiff's suit and the latter has appealed to this court.

The facts are practically undisputed. It is shown that shortly prior to the collision, which occurred at approximately 6:45 p. m. on January 25, 1954, an automobile belonging to Lucy Auzenne, mother of Bertrand Auzenne, and which was insured by the defendant company, was being driven by Bertrand Auzenne from Frank's Service Station to his home. In the car as a passenger was his aunt, Alzie Auzenne. The car gave out of gas and Auzenne secured gas from Bennie Pitre, approximately one mile from where the car stopped, and the latter brought Auzenne back in his Ford truck. After the gas had been put in and the car still failed to start, Auzenne thought that if it was pushed on level ground the gas would possibly reach the carburator and it would then start, and they therefore pushed Auzenne's car in such a position that the front end was over the center line of the highway. The car was sitting at an angle with its front end in the plaintiff's lane or travel. Pitre's car and after parked behind Auzenne's car and after the latter had been pushed into the position stated, it still would not and Pitre then intended to push the car with his truck. Before doing so, however, Auzenne stepped back to Pitre's truck to pay him for the gas, whereupon the plaintiff, approaching from the opposite direction in the south or east bound traffic lane, collided with the left front portion of the parked car, knocking it to the rear so that the left front headlight on the Pitre truck and a portion of the left front of the truck was damaged. According to one witness, the two cars after the accident came to a stop with their left front portions still locked together.

According to the plaintiff's version of the accident, as well as that of two relatives who were passengers in his car at they time, the first thing they noticed as they approached was a motor vehicle either coming toward them or parked with its right light burning. They never did see the left light or any sign of it, nor did they see the Auzenne automobile pushed crossways of the road with its front portion protruding in their lane of travel until they were evidently very close to it as shown by skid marks approximately 20 feet in length, which the police officer testified were made by plaintiff's car. There seemed to be some doubt thrown upon the police officer's testimony on this point as plaintiff and his two witnesses stated they did not see the parked car until they collied with it, however, some parts of the testimony reveal that the plaintiff did not understand English too well and it is possible that when he stated he did not see it until he hit it, he meant just prior to or approxinately at the moment of impact. Whether he saw it too late to avoid the accident or did not see it at all is more or less immaterial to the question to be decided. We must decide whether there were any unusual facts or circumstances which would excuse the plaintiff from failing to see this parked automobile.

It is proven that plaintiff was driving at a most reasonable rate of speed of 30 miles per hour and was under no duty to bring his car to a complete stop merely because he saw approaching him or parked a motor vehicle with one light burning. He slowed down and pulled his automobile as far to the right as possible so as to give plenty of room to the approaching motor vehicle with one light burning. This was the action of a normal, careful driver. It is contended that plaintiff should have seen the automobile partially blocking his lane of travel reflected in the headlights from Pitre's truck. From the evidence, the parked automobile was situated so as to completely cut off the left headlight of the truck parked to its rear and made it appear to approaching traffic that there was a motor vehicle with simply a bright right light burning. In other words, according to the testimony of plaintiff and his two passengers, who were his uncle and aunt, all three of whom were sitting on the front seat, it appeared to them that they were approaching a motor vehicle with one light, which they took to be the right, burning. Not any one of them saw the automobile parked in front of the motor vehicle with the one light burning. The fact that the three occupants of plaintiff's car, all with normal eye sight as far as the record is concerned and all of whom were on the front seat and enjoyed an unobstructed view ahead and none of whom saw the parked motor vehicle, is strong evidence that the latter was so parked that it cut off any reflection of the left headlight that would silhouette same. There is no question but that the parked automobile was protruding into the plaintiff's lane of travel with no head light or parking light burning, nor that the plaintiff had slowed down and pulled as far to his right as possible. This is borne out by the fact that plaintiff's car did not go any appreciable distance after the collision and by the fact that plaintiff struck the left front portion of the parked automobile, missing the right side.

The plaintiff has shown by the facts and circumstances of the case that the parked automobile was so located and situated with particular reference to the lights of the truck parked slightly to its rear that it could not be seen and it only gave the appearance to the plaintiff and the occupants of his car that they were approaching a motor...

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