Malone v. Hartford Ins. Co.

• Decision Date: 30 June 1970
• Docket Number: No. 8067,8067
• Citation: 239 So.2d 697
• Parties: Herman B. MALONE, Plaintiff-Appellant, v. HARTFORD INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 697

239 So.2d 697

Herman B. MALONE, Plaintiff-Appellant, v. HARTFORD INSURANCE COMPANY, Defendant-Appellee.

No. 8067.

Court of Appeal of Louisiana, First Circuit.

June 30, 1970.

W. D. Atkins, Lafayette, for plaintiff-appellant.

John S. White, Jr., of Kennon, White & Odom, Baton Rouge, for defendant-appellee.

Before LANDRY, SARTAIN and ELLIS, JJ.

SARTAIN, Judge.

This is an action by Herman B. Malone for the recovery of personal injuries and damages that resulted from a rear end collision on U.S. Highway 61 north of the Town of Gonzales. The defendant is the insurer of Reverend Peter Crifasi, driver of the other vehicle involved. From a judgment rejecting demands of plaintiff, he now prosecutes this appeal in forma pauperis.

It is undisputed that the accident occurred on November 25, 1967, at about 1:50 P.M. Malone was driving a 1965 Dodge station wagon that collided with the rear of a 1955 Ford pick-up truck owned by James Owens and being driven at that time by Reverend Peter Crifasi. U.S. Highway 61 runs generally in a northsouth direction between New Orleans and Baton Rouge. The vehicles involved in this accident were traveling north in the direction of Baton Rouge in the outside or right-hand lane for northbound traffic. Traffic at the time of the collision was heavy due to the fact that an L.S.U. football game was to be played later that day.

At the trial of the case two very conflicting versions of the accident were testified to by the witnesses.

Herman B. Malone testified as follows: He was a resident of French Settlement and had been employed as an electrician in Lake Charles, Louisiana. Shortly before the accident, he left French Settlement going through Port Vincent to Gonzales where he turned north on U.S. Highway 61 towards Baton Rouge intending to return to Lake Charles. He stated that he drove his automobile in the right or outside lane from the time he entered onto the highway until the accident at a speed of approximately 50 miles per hour. Until moments before the collision, he was following another vehicle by at least three car lengths. The car he was following put on its left blinker signal and applied its brakes and Malone stated he was under the impression at that time, although he could not see immediately in front of the preceding vehicle, that he 'thought maybe there was a slow-moving car in front of him'. The vehicle immediately preceding Malone turned into the inside or left lane for northbound traffic at which time Malone asserted that he saw a pick-up truck stopped in the right-hand lane approximately 100 feet ahead. He further testified that two young boys were standing on the right side of the truck and a man dressed in black was standing near the right front fender in front of the boys. Upon seeing the stalled vehicle immediately in front of him, Malone glanced into his rear view mirror and concluded that he could not execute a turn into the left lane nor could be proceed onto the right-hand shoulder to avoid striking the truck because of the presence of the people standing near the truck. His only course of action was to immediately 'jam' on his brakes but despite these efforts, Malone was unable to avoid the collision.

Reverend Peter Crifasi testified that on the day of the accident he had borrowed James Owens' half ton pick-up truck to go about some business in Gonzales and thereafter went to Gonzales in the truck with Owens' two boys to help him pick up iron elbows at a hardware store. He then intended to proceed to Moran's Electric Shop located north of Gonzales. He stated he was driving in the right or outside lane for northbound traffic at about 30 miles per hour. Approximately 100 yards before the turn-off to Moran's, he gave a right turn hand and arm signal maintaining the signal and slowing his vehicle to approximately 10 miles per hour until he was some 50 feet away from the turn-in at Moran's. He discovered that the store was closed and after withdrawing his arm and proceeding to within 15 or 21 feet of Moran's driveway, he stated he heard brakes 'screeching' to his rear and looking into the rear view mirror, he saw the swerving Malone vehicle. He testified that he was struck in the rear and that he brought his truck to a halt after the impact approximately 40 feet north of the point of collision on the right-hand shoulder of the road. He was emphatic in that at the time of the accident he was driving a moving vehicle and this was corroborated by his two passengers.

Officer C. J. Deslatte was called as a witness on behalf of the plaintiffs. He stated that he was proceeding toward Baton Rouge to L.S.U. for the football game. He testified that traffic on the afternoon of the accident was heavy. He recalled that traffic began piling up and it occurred to him there must have been an accident somewhere on the road whereupon he proceeded onto the right-hand shoulder for northbound traffic to the area of the collision. He testified that he issued no citations but that had there been any evidence in his investigation of the accident to suggest that the pick-up truck had actually been stopped on the highway, he believed that he would have issued a traffic citation.

The trial judge, although he did not hand down written reasons for judgment, apparently believed the testimony of the witnesses for the defendant for he denied plaintiff's demands. We are of the opinion that the judgment of the trial court is correct.

The well established general rule with respect to rear end collisions is succinctly stated in Taylor v. Genuine Parts Company, 192 So.2d 241 (La.App.1966), writ refused 250 La. 23, 193 So.2d 530, quoting with approval from Crow v. Alesi, 55 So.2d 16 (La.App.1951) as follows:

'A motorist following other traffic must keep his automobile at a safe distance behind so as to enable him to stop his automobile in a sudden emergency.'

The cases are legion that adhere to this general rule. Among them are Vienne v. Chalona, 28 So.2d 154 (La.App.1946); Burns v. Evans Cooperage Company, 208 La. 406, 23 So.2d 165 (1945); Max Barnett Furniture Co. v. Barrosse, 70 So.2d 886 (La.App.1954); Ray v. State Farm Mutual Automobile Insurance Co., 152 So.2d 566 (La.App.1963); and Dykes v. Lowrance, 146 So.2d 171 (La.App.1962). The Taylor case took the opportunity to review rather fully the law applicable to situations presented in the instant case. Further, this court has recently held in Strother v. State Farm Mutual Automobile Insurance Co., et al., 238 So.2d 774 (1970) that the established rule is that a motorist who runs into another...