Leonard v. Holmes & Barnes, Limited

• Decision Date: 22 November 1955
• Docket Number: No. 4085,4085
• Citation: Leonard v. Holmes & Barnes, Limited, 84 So.2d 109 (La. App. 1955)
• Court: Court of Appeal of Louisiana — District of US
• Parties: Earl A. LEONARD, Plaintiff-Appellee, v. HOLMES & BARNES, Ltd. and Great American Indemnity Co., Defendnants-Appellants.

Page 109

84 So.2d 109

Earl A. LEONARD, Plaintiff-Appellee, v.HOLMES & BARNES, Ltd. and Great American Indemnity Co Defendnants-Appellants.

No. 4085.

Court of Appeal of Louisiana First Circuit.

Nov. 22, 1955.

Rehearing Denied Dec. 30, 1955.

Writ of Certiorari Granted March 26, 1956.

Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellant.

Benton & Moseley, Baton Rouge, Donald L. Peltier, Thibodaux, for appellee.

Gravel & Downs, Alexandria, for intervenor.

ELLIS, Judge.

On the 12th of January 1951 at approximately 1:30 P.M. on a clear, dry day, a truck belonging to defendantHolmes & Barnes, Ltd. and insured by the Great American Indemnity Co. was being driven in the town of Port Allen on Louisiana Highway 168, and upon making a left hand turn approximately 85 feet west of Twelfth Street was struck on the right rear corner of its trailer by a 1936 Ford coach automobile owned and being driven by the plaintiffEarl A. Leonard.As a result of the collision plaintiff filed this suit against Holmes & Barnes Ltd. and its insurer on January 3, 1952.

On June 4, 1952, one year and six months after the accident sued upon, Coal Operators Casualty Co. filed a petition of intervention alleging that it was the compensation insurer of the State of Louisiana and the Louisiana Department of Wild Life and Fisheries by whom the plaintiff Leonard was employed on the date of the accident, and accordingly it had paid to the plaintiff up to June 1, 1952, $2,040 and further had paid plaintiff's medical expenses totalling $1,656.18, and therefore prayed for judgment for $3,696.18 with legal interest thereon from date of judicial demand plus reasonable attorney fees.

To the petition of interventiondefendants filed exceptions of no cause or right of action and in the alternative a plea of prescription of one year.While the minutes fail to reveal specifically what disposition was made of the exceptions and plea, there was judgment in favor of the intervenor, and hence they must be considered as having been overruled.

Plaintiff alleges in his petition that as he was about to pass defendant's truck, the driver apparently made a left hand turn to enter the driveway into an establishment known as Mims Store, and that this maneuver was performed without any warning which was visible to plaintiff and was so quick and unexpected that there was nothing he could do to avoid a collision although he attempted to do so by applying his brakes and turning to his right.

Specifically plaintiff charges the following negligence to the driver of defendant's truck:

'(a) The driver of the said truck failed to maintain an adequate and proper lookout, which amounted to negligence on his part and which was a proximate cause of the accident.

'(b) The driver of said truck failed to give any signal or warning of his intention to turn left, or if any such signal was given, failed to give it in a manner which could be seen by following motorists, which amounted to negligence on his part and which was a proximate cause of the accident.

'(c) The driver of the said truck was negligent in turning the vehicle to the left when he saw, or should have seen, that by such action a collision was unavoidable, and without first ascertaining that such a movement could be made in safety, which amounted to negligence on his part which was a proximate cause of the accident.'

In the alternative plaintiff plead that the driver of the defendant's truck had the last clear chance to avoid the accident.

The defendants answered denying any negligence on the part of the operator of the truck and alleging that plaintiff's injuries and damages were due solely and entirely to his own carelessness and negligence for the following reasons:

'a.At the time and place of the accident, the plaintiff, Earl A. Leonard, was operating the automobile which he was driving in a wanton, heedless, careless, reckless, imprudent and unlawful manner taking into consideration the location, time of day, visibility and the fact that Leonard was driving on a heavily traveled street within the City Limits of Port Allen, Louisiana, without having due regard to the traffic properly using said street, or the life, limbs, or the property of others, all of which was and is an immediate and proximate cause of the accident.

'b.At the time and place of the accident, the plaintiff, Earl A. Leonard, was operating the automobile which he was driving, without keeping a proper lookout for other traffic on the street on which he was traveling, all of which was and is an immediate and proximate cause of the accident.

'c.At the time and place of the accident, the plaintiff, Earl A. Leonard, did not have the automobile which he was driving under proper control so as to enable him to avoid the collision with the trailer by stopping or turning the automobile which he was driving, which insufficient control of said automobile on the part of Leonard was and is an immediate and proximate cause of the accident.

'd.At the time and place of the accident, the plaintiff, Earl A. Leonard, was operating the automobile which he was driving at a rate of speed greatly in excess of the speed limit allowed by Section 45(A)(B) of the Ordinance entitled 'Regulating Traffic upon the Streets of the Town of Port Allen, Louisiana, Prescribing Penalties for the Violation of this Ordinance and Repealing all Ordinances in Conflict herewith,' adopted by the Mayor and Board of Aldermen of the Town of Port Allen, Louisiana in 1950, all of which was and is an immediate and proximate cause of the accident.

'e.At the time and place of the accident, the plaintiff, Earl A. Leonard, was operating the automobile which he was driving while under the influence of intoxicating liquor in violation of the Laws of LouisianaandSection 52 of the Ordinance entitled 'Regulating Traffic upon the Streets of the Town of Port Allen, Louisiana, Prescribing Penalties for the Violation of this Ordinance and Repealing all Ordinances in Conflict herewith,' adopted by the Mayor and Board of Aldermen of the Town of Port Allen, Louisiana in 1950 all of which was and is an immediate and proximate cause of the accident.'

In the alternative defendants also plead contributory negligence for the five reasons heretofore quoted.

This case was tried on September 3, 1952 and decided on May 12, 1955.We mention this fact without intending any inference that our Learned Brother of the Lower Court was in anywise responsible for this delay but merely because it was argued both orally and in briefs as making a difference in the so-called manifest error rule.There was judgment in favor of the plaintiff and intervenor.

The District Court in its written reasons concluded:

'* * * Obviously, therefore, the sole and proximate cause of said accident is the total failure of Tillman to assume his legal responsibility and follow the law which required him to exercise the highest degree of caution before and while attempting his said left turn across Highway 168 as aforesaid and placed upon him (Tillman) the responsibility for seeing that such a dangerous maneuver could be made in safety to approaching traffic as well as to all concerned.It is clear that Tillman in making said left turn was deeply and solely concerned with the difficulty of driving his large truck and trailer in and over the small drive-in entrance to said store especially since there existed at that time a hole on the side of said private road.And it is an indisputable fact that Tillman by his said heedless and careless driving of the truck and trailer left across said highway created a sudden emergency which was the proximate cause of the accident herein.Surely, if Tillman before making his said left turn, had looked for approaching traffic as the law requires, he would have seen what he should have seen and that is the approaching Leonard car close by in the south lane attempting to pass him, and Tillman could have and in accordance with the law of self-preservation would have remained where he was on the north side of said highway until after Leonard had passed him and there would have been no accident, and Leonard would not have been put by Tillman in the perilous position of attempting to extricate himself from the dangerous position resulting from said sudden emergency created by Tillman.And it is also apparent and undeniable that the Defendants herein have failed to carry the burden of proof as required by law in cases where contributory negligence is set up as a defense and that defendants have totally failed to establish affirmatively by a preponderance of evidence the contributory negligence of plaintiff Leonard alleged in this case.'

From an adverse judgment the defendants have appealed and the plaintiff has answered asking that the award be increased.

It might be well to first discuss this case from the standpoint of the negligence of the operator of the defendant's truck as a proximate cause of the collision.

It is shown that Highway 168 is a two lane paved highway leading west from Port Allen with 18 feet of concrete and 10 feet of shoulders on each side thereof and that the motor vehicle was a truck and trailer and at the time was half loaded and weighed approximately nine thousand pounds.It was being driven west in order to make a delivery to a small grocery store located south of the highway known as Mims Grocery.Twelfth Street intersects the highway at approximately 85 feet from a gravel road leading to the south of Mims Store.The operator of the truck testified that he was traveling on the north or right hand lane of Highway 168, and a car was approaching from the opposite direction, and that when he got to the Twelfth Street, which was approximately 85 feet from the gravel road leading to Mims Grocery where he intended to make the left hand turn, he looked in his rear view mirror and he saw plaintiff's automobile 'about 400 feet behind me,' and after that he did not...