Leonard v. Holmes & Barnes, Limited

• Decision Date: 25 February 1957
• Docket Number: No. 42779,42779
• Citation: Leonard v. Holmes & Barnes, Limited, 94 So.2d 241, 232 La. 229 (La. 1957)
• Court: Louisiana Supreme Court
• Parties: Earl A. LEONARD v. HOLMES & BARNES, Limited, and Great American Indemnity Company. In re Earl A. LEONARD and Coal Operators Casualty Company, Intervenor, Applying for Certiorari, or Writ of Review.

Page 241

94 So.2d 241

232 La. 229

Earl A. LEONARD v.HOLMES & BARNES, Limited, and Great American Indemnity Company In re Earl A. LEONARD and Coal Operators Casualty CompanyIntervenor, Applying for Certiorari, or Writ of Review.

No. 42779.

Supreme Court of Louisiana.

Feb. 25, 1957.

Rehearing Denied April 1, 1957.

Harvey Peltier, Thibodaux, Benton & Moseley, Baton Rouge, Gravel, Humphries, Sheffield & Mansour, Alexandria, for plaintiff and for intervenor.

Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for defendant-appellants-respondents.

HAWTHORNE, Justice.

This case is before us under our supervisory jurisdiction to review a judgment of the Court of Appeal, First Circuit, which reversed a judgment of the district court in favor of the plaintiff, Earl A. Leonard, and the intervenor, Coal Operators Casualty Company, and dismissed plaintiff's suit.See84 So.2d 109.

This is a tort action in which plaintiff is seeking to recover damages growing out of a collision between a 1936 Ford coach which he was driving and a truck being driven by Alex Tillman, an employee of Holmes & Barnes, Ltd.The defendants are Holmes & Barnes, Ltd., and its insurer, Great American Indemnity Company.Coal Operators Casualty Company intervened in the suit to recover wrokmen's compensation and medical expenses paid to the plaintiff as a result of injuries which he sustained in the accident.

The defendants denied any negligence on the part of Tillman, the operator of the truck, and alleged that the accident was caused solely by the negligence of Leonard.In the alternative defendants pleaded contributory negligence.

The accident occurred in the corporate limits of Port Allen, Louisiana, at about 1:30 in the afternoon on a clear, dry day in January, 1951.Tillman, the operator of the truck, was proceeding in a westerly direction on Highway 168, which is an east and west highway running through the Town of Port Allen.His destination was a store on the south side of the highway known as Mims Grocery.As he approached a small gravel driveway leading to this grocery, according to his testimony he slowed his truck to a speed of about 15 miles an hour preparatory to making a lefthand turn across the highwy to enter the gravel driveway to the grocery.When the front of his truck had entered the gravel road leading to the store and the rear wheels of the trailer attached to the truck were approximately on the black center line of the highway, the right rear corner of the trailer was struck by the left front and side of the Ford automobile driven by the plaintiff.

The Court of Appeal found the driver of the truck, Tillman, to be negligent in that he failed to look to his rear just before attempting the lefthand turn, under the well settled law of this state that a person who attempts to make a left turn on a public highway must be sure before doing so that the turn can be made in safety.R.S. 32:235, 236;Dunnington v. Richard, La.App. 1 Cir., 81 So.2d 33;Tyler v. Marquette Casualty Co., La.App. 2 Cir., 79 So.2d 376;Fornea v. Crain, La.App. 1 Cir., 79 So.2d 95;Michelli v. Rheem Mfg. Co., La.App.Orl., 34 So.2d 264.

We fully agree with the Court of Appeal's conclusion.Moreover, pictures of the truck involved in this accident, which were introduced in evidence, show it to be a large 10-wheel truck and trailer, the trailer having an enclosed body much wider than the cab of the truck.The truck driver testified that he held out his hand to indicate his intention to turn left.The pictures disclose, however, that this truck and trailer was so constructed that an arm signal would not be visible from the rear even if one had been given, and was not equipped with any mechanical or electrical device by which the driver could signal his intention to turn.Failure to equip the vehicle with such a device was a violation of R.S. 32:236(B) and constituted negligence on the part of defendants.

The question then presented is whether plaintiff was guilty of contributory negligence so as to bar recovery.

Leonard in his sworn testimony taken by consent of counsel before the trial stated that he was going west behind the truck at a speed of about 35 miles per hour; that in order to pass the truck he increased his speed and pulled over into the south lane; that just as his front wheels had passed the rear wheels of the truck and trailer, the truck suddenly without warning made a sharp turn to the left; that he then veered to the right back into the north lane, applying his brakes, but was unable to avoid striking the right rear corner of the trailer with the left side of his car.Leonard also testified at the trial of the case that he was proceeding at a speed of 35 miles per hour, and that he picked up to 45 miles per hour to pass the truck.On this occasion, however, he stated that he had moved into the south lane, or his left lane, and was some seven to 10 feet behind the truck when it...