Lewis v. Variste

• Decision Date: 02 November 1982
• Docket Number: No. 13218,13218
• Citation: 422 So.2d 222
• Parties: Oscar J. LEWIS, et al. v. Willie VARISTE, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 222

422 So.2d 222

Oscar J. LEWIS, et al. v. Willie VARISTE, et al.

No. 13218.

Court of Appeal of Louisiana Fourth Circuit.

Nov. 2, 1982.

Peter S. Title, James Ryan, III, Sessions, Fishman, Rosenson, Boistontaine & Nathan, New Orleans, for defendants-appellees.

S. Reed Morgan, New Orleans, for plaintiffs-appellants.

Before KLEES, BYRNES and WARD, JJ.

KLEES, Judge.

Plaintiffs, Oscar J. Lewis, as administrator of the estate of his son, Leonard Lewis and Simone Lewis appeal from a judgment of the trial court, rendered pursuant to a jury verdict, dismissing suit for damages against defendants-appellees Alfred Pollar, Sr., Alfred Pollar, Jr., and State Farm Mutual Automobile Insurance Company. Plaintiffs' suit arises out of an accident which occurred when a motorcycle driven by David Variste on which plaintiffs' minor son Leonard Lewis was a passenger, rear-ended a vehicle driven by Alfred Pollar, Jr. The jury found David Variste negligent and awarded damages in the amount of $325,000 to Leonard Lewis and $15,000 to his father, Oscar J. Lewis. Prior to trial, however, the plaintiffs settled with defendants David Variste, Willie Variste, Jefferson Insurance Company and All State Insurance Company. The jury found that Alfred Pollar, Jr., was not negligent and dismissed the suit against Alfred Pollar, Sr., Alfred Pollar, Jr., and State Farm Insurance Company. Plaintiffs' motion for a new trial was denied, and plaintiffs appeal that ruling as well as the jury verdict and judgment thereafter contending 1) that the jury verdict was manifestly erroneous in that it was contrary to the law and/or evidence and 2) that the trial judge erred in denying plaintiff's motion for a new trial.

We can find no manifest error in the jury verdict nor in the denial of plaintiffs' motion for a new trial and, accordingly, we affirm.

FACTS

On the evening of November 11, 1978, defendant, Alfred Pollar, Jr., and his date, Julie Overstreet, attended a homecoming dance at John F. Kennedy Senior High School. The dance ended at 11:00 p.m. and Alfred Pollar, Jr., Julie Overstreet, Kerwin Broussard and Claudette Nicholas made plans to meet at Claudette Nicholas' house. Alfred Pollar, Jr., was driving his father's automobile, accompanied by Julie Overstreet and Kerwin Broussard.

From the high school parking lot, Alfred Pollar, Jr., turned onto Wisner Boulevard proceeding southward in the right lane of the boulevard at a reduced rate of speed. The speed limit on the boulevard was thirty-five miles per hour. Pollar's car was followed from the parking lot by Claudette Nicholas' vehicle.

Several moments later, Diane Dileo, a teacher at Kennedy High School, drove past the Pollar car in her auto. Next, three motorcycles, all in the right lane, approached the Pollar vehicle from behind. The motorcycle which David Variste was driving was in the center of the right lane flanked by a motorcycle on each side driven by Variste's friends. When the Pollar vehicle came into sight, the motorcycle on the left side of Variste swerved to the left. The motorcycle to the right of him veered to the right off the road into the City Park ditch which runs along Wisner Boulevard. The Variste motorcycle, in the middle position, rear-ended the Pollar automobile. Appellant Leonard Lewis, the passenger on the motorcycle driven by David Variste, sustained serious injuries in the collision. The quantum awarded is not an issue in this appeal, and we will not discuss the extent and severity of these injuries.

Appellants assert that Alfred Pollar, Jr., was negligent in driving his car too slowly down Wisner Boulevard and that this was a proximate cause of the accident. Defendants contend that Pollar was not negligent because a reduced rate of speed was reasonable and necessary due to the dense fog in the area that night.

The appellate courts of this state are to review both the law and the facts in civil cases, whether the case is tried before a judge or jury. Storey v. State Farm Mutual Fire Insurance Co., 327 So.2d 687 (La.App. 1st Cir.1976), writ denied, 330 So.2d 309 (La.1976). The findings of fact by the trial judge or jury shall not be disturbed absent a positive showing that such findings are manifestly erroneous upon the face of the record. Storey, supra.

Because the trial court has the opportunity to evaluate live witnesses, the appellate court must give great weight to the factual conclusions of the trier of fact, even in cases of conflicting testimony. Weaver v. Otis Elevator Company, 399 So.2d 1268 (La.App. 4th Cir.1981).

Appellants contend that the jury verdict, being contrary to the law as charged and/or to the evidence establishing the facts, is manifestly erroneous and should be reversed. They further assert that the trial judge erred in denying the appellants' motion for a new trial.

The jury was instructed by the court that when an innocent person such as a guest passenger is injured as a result of a collision between two drivers, each driver is considered under the law to be guilty of negligence and has the burden of exculpating himself.

Sufficient evidence that defendant's reduced rate of speed was justified was adduced at trial for the jury to conclude that he met this burden.

Appellants contend that the evidence proved that the fog did not diminish visibility to an extent making it necessary or reasonable to slow to ten miles per hour, the speed Alfred Pollar, Jr. admitted he was traveling. They base this argument both on Diane Dileo's testimony that she was proceeding at thirty-five miles per hour without visibility problems as she passed the Pollar vehicle and on David Variste's statement in his deposition that he was driving his motorcycle thirty-five miles per hour before the accident occurred.

Our review of the record shows that each witness at trial testified that the area was covered by a dense fog on the evening of the accident and that visibility was limited. The speed limit on a street is fixed according to normal weather conditions, and a driver must reduce his speed when the weather conditions create a hazardous driving situation.

LSA-R.S. 32:64 requires that "No person shall drive a vehicle on the highway within this state at a speed greater than is reasonable and prudent under the conditions and potential hazards then existing, having due regard for the ... condition of the weather...." On Wisner Boulevard, the speed limit was thirty-five miles per hour. It seems logical that when the weather conditions are less than optimum, such as the presence of heavy fog, a prudent driver would drive less than thirty-five miles per hour on this boulevard. The particular facts of this...