Lewis v. Quebedeaux, 268

• Decision Date: 22 May 1961
• Docket Number: No. 268,268
• Citation: Lewis v. Quebedeaux, 134 So.2d 93 (La. App. 1961)
• Parties: Johnny LEWIS, Plaintiff-Appellee, v. Harold L. QUEBEDEAUX et al., Defendant-Appellants.
• Court: Court of Appeal of Louisiana

Page 93

134 So.2d 93

Johnny LEWIS, Plaintiff-Appellee, v.Harold L. QUEBEDEAUX et al., Defendant-Appellants.

No. 268.

Court of Appeal of Louisiana, Third Circuit.

May 22, 1961.

On Rehearing Sept. 20, 1961.

Rehearing Denied Oct. 11, 1961.

Certiorari Denied Nov. 6, 1961.

Gold, Hall & Skye, by Jimmy M. Stoker and Leo Gold, Alexandria, for defendant-appellant.

Gist, Murchison & Gist, by Howard B. Gist, Jr., Alexandria, for defendants-appellants.

Harold J. Brouillette and James A. McGraw, by Harold J. Brouillette, Marksville, for plaintiff-appellee.

Nesib Nader, Shreveport, for intervenor-appellee.

Chester J. Coco, Marksville, for plaintiff-appellee.

Before TATE, FRUGE , and SAVOY, JJ.

FRUGE , Judge.

This suit arose as a result of a rear end collision.From an adverse judgment defendants prosecute this appeal.Defendants are Harold Quebedeaux, who was driving his father's 1958 Chevrolet automobile, General Accident Fire & Life Assurance Corporation, the insurer of defendant's father's automobile, and Traders & General Insurance Company, the insurer of Harold L. Quebedeaux' automobile.Traders & General Insurance Company provides excess coverage over and above the amount for which Quebedeaux might be found liable exceeding the limits of the primary coverage provided by General Accident Fire & Life Assurance Corporation.Confederate Memorial Medical Center has intervened as subrogee per the provisions of LAS-R.S. 46:8 and 15, for medical services extended to plaintiff and attorney's fees.

The facts are substantially these.In the early morning of October 19, 1958, at about 3:00 A.M. the collision occurred.Plaintiff had been travelling south on Louisiana Highway 1 when approximately two miles south of Marksville, Louisiana, plaintiff's vehicle stalled and stopped.Plaintiff's automobile was a dark blue 1956 two-door Ford (owned by plaintiff) which was being driven by his brother Ameale (Emile) Lewis.When the car stopped plaintiff and two passengers got out in order to push the car onto the shoulder.As they were in the process of pushing the automobile onto the shoulder defendant approached in his father's car, driving about 55 to 60 miles per hour.He was also proceeding in a southerly direction.As he neared the plaintiff automobile he, allegedly, ran through a sheet of fog and was also blinded by the bright lights of an approaching car.The approaching car turned off and at that moment defendant saw plaintiff's automobile.Defendant applied his brakes and veered onto the left side of the highway in an attempt to avoid colliding with the plaintiff's automobile.He was unsuccessful in this attempt as when he pulled to the left his front left wheel ran off the road, hit some ruts, and swerved back onto the road hitting the rear left of the plaintiff automobile.Plaintiff, Johnny Lewis, was one of the three men attempting to push the Ford automobile off the road.The other two men successfully escaped injury--however, plaintiff was struck and both legs were broken.This suit resulted for damages to the plaintiff's automobile and for the injuries sustained by plaintiff.

Plaintiff contends that defendant was negligent which was the proximate cause of the accident and resultant damages and injuries and alternatively if plaintiff was contributorily negligent then the doctrine of last clear chance applies and defendant is nevertheless liable.Defendant denies negligence and contends that plaintiff was negligent and that his negligence bars recovery, and alternatively pleads contributory negligence.The lower court found that defendant was negligent in several respects, i.e. entering a 'sheet of fog without reducing his speed; in not seeing the stalled car and those shoving it before he did; in driving his left wheel onto the shoulder of the road and losing control thereof; and in not being able to stop in time to avoid the collision.'The lower court further found that plaintiff was not contributorily negligent either directly or by imputation.On appeal defendant reasserted the position that he was not negligent and alternatively that plaintiff was grossly contributorily negligent which was the proximate cause of the accident.Defendant contends that plaintiff was contributorily negligent in the following respects: parking an unlighted automobile on the highway at night in violation of law; failing to set out warnings of the unlighted automobile; failing to keep a proper lookout and take adequate measures for his own protection; failing to observe defendant's approach; and failing to warn defendant of the dangerous and hazardous condition created by stopping the automobile on the highway without flares or signals or warning of any kind.

First for our consideration is the negligence of the defendant.In Culpepper v. Leonard Truck Lines, 208 La. 1084, 24 So.2d 148, 150, the general rules of the duty of care required was stated thusly:

"A motorist must use such diligence and care as is commensurate with the dangerous character of the locality.But, even though the danger be slight, he is not absolved from the duty to look ahead. * * *

"The greater the danger the greater the degree of care required is a universal rule in the law of negligence * * * (citations omitted.)

"A motorist has not the right to assume that his course of travel is free of danger or obstruction, in the absence of his ability to see clearly ahead.If he does so assume and continues to travel as though he knew there was perfect clearance ahead, he does so at his own risk and peril.'* * * (Citations omitted.)'

It has been held that no hard and fast rule can be laid down, but surrounding circumstances and facts of a given case must be considered where the driver failed to slow down or observe a stationary vehicle obstructing the highway.SeeGaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377.In the case of Rea v. Dow Motor Co., La.App., 36 So.2d 750, it was held that generally a motorist must see or will be held to have seen all objects sufficiently large to interfere with traffic on his side of the highway within the distance well illumined by the lights of his automobile and he will be excused for not having seen such objects unless the failure be due to lack of care and vigilance in the determination of which all physical, atmospheric and other pertinent conditions should be given proper weight and consideration.In the case of Sedotal v. Fidelity & Casualty Co. of New York, La.App., 77 So.2d 153, 156, Judge Lottinger reviewed the law as follows:

'* * * the general rule is well established in this state to the effect that it is the duty of the operator of an automobile, while driving at night, to operate said automobile in such a manner that it can be stopped within the range of vision illuminated by the headlights of the car.It is also well settled that there may be exceptional circumstances which will serve to exculpate a driver who, because of those exceptional circumstances and in spite of due diligence, fails to discover some obstruction or some other vehicle on the road ahead of him, and that no fixed rule may be laid down by which it may be determined just what will constitute such exceptional circumstances.* * * (Citations omitted).'

And in the case of King v. Riscon & W. E. Holoman Lumber Co., La.App., 76 So.2d 548, 551, Judge Gladney, with appropriate citation of authority, quoted as follows:

"In each of the cases wherein the driver of the moving vehicle, which ran into a stationary one, was absolved from negligence as to contributing cause of the collision, the conditions that superinduced the accident were unusual, exceptional.They were not to any extent the result of the moving motorist's failure to reasonably perform every duty imposed by law.'

'The unusual conditions and exceptional circumstances referred to which go to form exceptions to the general rule above stated are such that even with the exercise of ordinary prudence and care by the motorist an accident would more than likely occur. * * *.'(Emphasis added.)

The mere fact that an obstruction in the road is unlawful will not excuse the motorist from exercising the required degree of care to observe and avoid running into it.Culpepper v. Leonard Truck Lines, supra.

Defendant alleges that the fog and bright lights prevented him from seeing plaintiff's vehicle which had been stopped in the road.This, however, does not absolve defendant from the duty of care required under the circumstances.SeeRaziano v. Trauth, 15 La.App. 650, 131 So. 212, 213, wherein it was said: 'But, assuming that the light and fog did affect his view, he would be required to exercise a degree of caution commensurate with the increased danger these circumstances involved.'There the court further stated that 'Assuming that the plaintiff had no lights at all, he can fail to recover only if defendant, in the absence of those lights, could (not) have avoided the collision by the exercise of proper care.'And where there is fog on the highway, the duty of the driver of an automobile is increased so that he must exercise greater care.Howell v. Kansas City Southern Transport Co., La.App., 66 So.2d 646.Cf.Washington Fire & Marine Insurance Co. v. Hamilton, La.App., 106 So.2d 829.A driver of a motor vehicle at night, on encountering new and varying agencies such as bright lights, fog, dust, rain or smoke, must reduce the speed of the vehicle so that he will be able to stop it within the distance that the highway is illuminated by the lights of his vehicle.SeeRector v. Allied Van Lines, La.App., 198 So. 516.In the case at bardefendant admits that he saw the fog but did not apply his brakes as he went through it.He also testified that immediately after going through the fog he encountered the bright lights of the car which turned off the road approximately three to four hundred feet prior to the scene of the accident.We find that defendant should have applied his brakes...