Martin v. State, Through Dept. of Highways

• Decision Date: 05 September 1975
• Docket Number: No. 5118,5118
• Parties: Edgar MARTIN, Administrator of the Estate of Rickey Martin, Plaintiff and Appellant, v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Defendant and Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 827

322 So.2d 827

Edgar MARTIN, Administrator of the Estate of Rickey Martin Plaintiff and Appellant, v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS Defendant and Appellee.

No. 5118.

Court of Appeal of Louisiana, Third Circuit.

Sept. 5, 1975.

Riddle & Bennett by John T. Bennett, Marksville, for plaintiff-appellant.

Doran & Kivett by William J. Doran, Jr., Baton Rouge, for defendant-appellee.

Before HOOD, CULPEPPER and MILLER, JJ.

CULPEPPER, Judge.

This is a suit for damages instituted by Edgar Martin, individually and as administrator of the estate of his minor son, Rickey. The defendant is the State of Louisiana, through the Department of Highways. Rickey was driving a Honda motorcycle west on Louisiana Highway 451. He crested the top of a levee as he approached the intersection of Highway 451 and 'cut-off road', which, runs along the west side of the levee. Mr. Kress Marcotte, who was traveling in an easterly direction on the highway, was turning left onto 'cut-off road', thus blocking Rickey Martin's lane of travel. Rickey applied his brakes and skidded 90 feet before colliding with the right rear of the Marcotte automobile. Young Martin, who was 15 years of age at the time, received serious personal injuries.

Plaintiff settled his claim against Marcotte, and now seeks durther damages from the Department of Highways. Subsequent to the institution of this suit, Rickey Martin married and was thereafter substituted as a party plaintiff for some of the damages originally prayed for.

The trial court found that the Department of Highways was negligent but held that plaintiff was barred from recovery by his contributory negligence. We affirm.

The decisive issue is whether the plaintiff, Rickey Martin, was guilty of contributory negligence.

We are unable to say that the trial judge's finding of contributory negligence was erroneous. The basis for that finding was set forth in his written reasons for judgment as follows:

'The defendant Highway Department pleaded contributory negligence on the part of young Martin. He testified he was a little over fifteen years old at the time; that he lived in the vicinity of this intersection his whole life; that he was well acquainted with it; that he passed there almost daily, sometimes several times daily. It was in daylight hours; visibility was good; that he approached this levee from the east, on his motorcycle, and was travelling between twenty and forty miles per hour, according to him. And while it is true that the posted speed limit there is sixty miles per hour, it would be gross negligence, in the Court's opinion, to come over this levee on Highway 451 at sixty miles per hour. True, young Martin was not making that speed. But the skid marks he left and his inability to stop before hitting the Marcotte vehicle convinces the Court that his speed was about forty miles per hour or possibly more, rather than twenty miles per hour.

'It is and should be obvious to anyone of normal intelligence, who knows this intersection, that it is very dangerous; that one should proceed from the east, there on Highway 451, with the utmost caution. This intersection was there, in its obviously dangerous condition, for many years . . . since 1930, the Court believes. And for his entire life, certainly since his age of reason, this young man was aware of this danger. The Court concludes that young Martin was driving his motorcycle too fast under these conditions. His speed was negligence, under these circumstances, and was a contributory cause of the accident. The...