Louisiana Power & Light Co. v. Saia

• Decision Date: 05 April 1937
• Docket Number: 16563
• Citation: 173 So. 537
• Parties: LOUISIANA POWER & LIGHT CO. v. SAIA et al
• Court: Court of Appeal of Louisiana — District of US

173 So. 537

LOUISIANA POWER & LIGHT CO. v. SAIA et al

No. 16563

Court of Appeal of Louisiana, Orleans.

April 5, 1937

Rehearing denied April 19, 1937. Writ of certiorari granted May 24, 1937.

Monroe & Lemann and Robt. G. Polack, all of New Orleans, for appellant.

Robt. A. Ainsworth, Jr., of New Orleans, for appellees.

OPINION

JANVIER Judge.

This is an appeal from a judgment dismissing, on exception of no cause of action, plaintiff's suit to recover for the damage sustained by its automobile when, according to plaintiff's petition, it ran into the rear of a truck and trailer belonging to defendant Saia, which truck and trailer were "parked in a stationary position and without any lights whatsoever on said public highway (3)5C."

Defendant Saia, the owner of the stationary vehicles, and Continental Casualty Company, his liability insurance carrier, maintain that the exception was properly sustained, contending that as a matter of law, it is negligence for the driver of a vehicle to fail to see and to avoid another vehicle in the roadway ahead, whether lighted or not and whether stationary or moving; that it is also negligence, as a matter of law, to operate a motor vehicle at night at a speed which will not permit of its being stopped within the distance illuminated by its headlights.

Plaintiff maintains that the mere fact that its automobile was driven by its employee into the standing vehicle does not, of itself, necessarily show contributory negligence on the part of the driver, and that in such situation there may be circumstances which, if shown, will permit the conclusion that such driver was not at fault, and that, therefore, since contributory negligence is a special defense, which must be specially pleaded, it is improper to dismiss, on exception, such a suit as this in which the contention raised by the exception is that the act of the driver of plaintiff's vehicle in running into the other was contributory negligence regardless of surrounding circumstances.

There have been a great many cases in which this and other courts have considered and discussed facts similar to those which are here alleged, and in all of them it has been held that the failure of the driver of the moving vehicle to observe the obstruction usually in the form of a stationary vehicle constituted such negligence as would prevent recovery. O'Rourke v. McConaughey (La.App.) 157 So. 598, 606; Hutchinson v. T. L. James & Co. (La.App.) 160 So. 447; Bordelon v. T. L. James & Co. (La.App.) 148 So. 484; Safety Tire Service v. Murov, 19 La.App. 663, 140 So. 879; Waters v. Meriwether Transfer Co., 18 La.App. 18, 137 So. 578, 581; Raziano v. Trauth, 15 La.App. 650, 131 So. 212; Sexton v. Stiles, 15 La.App. 148, 130 So. 821, 828; Blahut v. McCahil (La.App.) 163 So. 195, 197; Woodley & Collins v. Schusters' Wholesale Produce Co., Inc., 170 La. 527, 128 So. 469, 470.

But in none of those cases has this result been reached regardless of surrounding circumstances and facts. In fact, in some of them the possible effect of such surrounding circumstances has been mentioned, and in all of those in which it has been mentioned the court has been careful to say that there were not such circumstances as justified the failure of the driver to see the object ahead.

In Woodley & Collins v. Schusters' Wholesale Produce Co. supra, in which it was contended that the driver of a vehicle should always have his car under such control and moving at such speed as will permit, regardless of circumstances, of its being stopped within the distance illuminated by its headlights, the Supreme Court said that such a question "depends so much upon the circumstances of the particular case that it is not easy nor safe to lay down a hard and fast rule on the subject." In Blahut v. McCahil, supra, the Court of Appeal for the First Circuit clearly indicated that there should be taken into consideration the conditions affecting the visibility of the object or vehicle in the roadway ahead. Referring to the fact that the obstruction struck was a truck loaded with long pine pilings, the court said: "There is no evidence herein to show wherein this fact affected visibility." In O'Rourke v. McConaughey, supra, we said that, although ordinarily there is a duty in the driver of a vehicle to see any object in the roadway ahead and to operate his car at such speed as will permit of its being stopped before such object is struck, nevertheless "under certain circumstances creating an emergency the rule may be different," and in Waters v. Meriwether Transfer Co., supra, the Court of Appeal, while stating that "the courts almost uniformly hold the driver of an automobile...