Maryland Cas. Co. v. Allstate Ins. Co.
| Decision Date | 27 May 1957 |
| Docket Number | No. 8521,8521 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | MARYLAND CASUALTY COMPANY, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY et al., Defendants-Appellees. |
Gist, Murchison & Gist, DeWitt T. Methvin, Jr., Alexandria, for appellant.
Stafford & Pitts, Alexandria, for appellees.
This action is one sounding in tort and arises from a fatal accident which cost the life of Ellis Hickman, an employee of the Department of Highways of the State of Louisiana. Suit was instituted by Maryland Casualty Company which became legally subrogated under LSA-R.S. 23:1101, 23:1161, for workmen's compensation payments to the widow and heirs of the employee. Made defendants are Murray Hicks, the driver of the automobile which caused the death of Hickman, and his liability insurance carrier, Allstate Insurance Company. Following a trial on the merits, the district court rejected plaintiff's demands and it has appealed, seeking a review of the issues which developed from charges of negligence and counter negligence imputed to Hicks and the deceased.
The accident took place on State Highway No. 21, four miles west of Hineston in Rapides Parish, Louisiana, at about 7:00 o'clock on the morning of September 13, 1954, at which time the atmosphere was clear and dry. The highway at that point was level and straight for a distance of one-half mile or more on either side and was paved with an eighteen-foot asphalt slab. Work had been in progress on the shoulders of the road and a number of gravel trucks of the Department of Highways were engaged in hauling and unloading gravel and dirt. On this particular day work had not yet commenced except to the extent that several of the highway trucks were engaged in placing warning signs and preparing to commence hauling. One of these trucks, driven by Earl B. Deville, had preceded the others and gone westerly about one-half mile where Deville erected a sign reading: 'Slow, Road Repairs Ahead.' A truck driven by the deceased arrived at the point of the accident and stopped on the north shoulder of the road. A third truck operated by Otis Guree temporarily stopped behind Hickman's truck, then pulled to the left and proceeded westerly. Still another truck, being driven by Thomas L. Miller, was more than three hundred feet to the east of and approaching the locus of the impending accident. With these motor vehicles approximately in the position so designated, Ellis Hickman opened the door of his truck, stepped out and proceeded to cross to the opposite or south side of the highway for the purpose of placing a sign similar to the one referred to above. After he had taken about four steps and crossed the center of the asphalt strip, he was struck by a Pontiac automobile driven by Murray Hicks and was instantly killed.
Otis Guree and Thomas L. Miller, drivers of the trucks as above described, testified that they witnessed the collision. Guree said he had passed the automobile driven by Hicks and was about two or three hundred feet west of it when, through his rear view mirror, he observed it strike Hickman. He expressed the opinion that the automobile driven by Hicks was traveling at a speed of eighty to eighty-five miles per hour. Miller, likewise testified he observed the impact, at which time he was about three hundred feet to the east thereof. He testified he saw the deceased when he stepped from his truck and started on a trot across the pavement. Asked what Hickman did when he got out of his truck, Miller answered: 'Well, he just started in a trot across the road.' Other eyewitnesses were Henry Harvey Judkins, Willie Bailey, Jr., and Murray Hicks. Judkins and Bailey were seated on the front seat with the driver of the automobile. Bailey stated, however, he did not see Hickman until after Hicks had effectively applied his brakes. Judkins testified he saw the deceased step from the running board and run across the highway. None of the passengers seated on the rear seat of the automobile was paying attention ahead and their testimony related only to the speed at which Hicks was driving and their observation concerning the sign placed on the highway by Deville. All of the passengers in Hicks' car who testified, stated the driver of the automobile was not driving more than fifty-five miles per hour. None of them observed the sign placed by Deville, nor could any of these witnesses estimate the distance from Hickman when they first observed him in the highway.
Murray Hicks testified he was traveling from fifty to fifty-five miles per hour when he drove over a hill about one-half mile west of the scene of the accident, and at that time observed two trucks parked on the north side of the highway, whereupon he immediately released his accelerator pedal and slowed to a speed of forty to forty-five miles per hour. He said he saw Hickman when he opened the door of his truck but did not again see him until he was in the middle of the highway just over the center line in the south, or Hicks' proper lane of travel; that he immediately applied his brakes and exerted every effort to control his car. At the time he first observed Hickman out of the truck, he was running across the road. Hicks testified further that he did not blow his horn, giving as his reason for not doing so he did not have time. He also stated he did not observe any road sign.
Two State troopers, Clifford G. Wilson and James E. Ray, who arrived promptly upon the scene, found the Hicks automobile had skidded a measured distance of ninety-seven feet to the point of its impact with the deceased, and then skidded a further distance of one hundred ten feet down the highway where it came to rest crossways on the pavement.
Based upon this evidence, which is not refuted, the trial judge concluded the Hicks vehicle was traveling in excess of sixty miles per hour at the time the driver actually applied his brakes. It is clearly demonstrated, we think, that Hicks was traveling at an excessive rate of speed and, therefore, was guilty of negligence.
The defendants, pleading alternatively, strongly contend the deceased was contributorily negligent in failing to observe if the highway could be safely crossed. Plaintiff, anticipating this issue, invokes the last clear chance doctrine. Therefore, as the primary negligence of Hicks is plainly indicated two principal issues are presented for solution, and these are, first, as to the contributory negligence of the deceased, and second, but only if this question is answered in the affirmative, whether the last clear chance doctrine is applicable under the facts herein involved.
There is no conflict in the testimony as to the manner in which the deceased left his place of safety in the truck and proceeded hurriedly to cross from the truck to the opposite shoulder of the road. It is clearly shown Hickman got out of the left door of his truck and without looking in either direction for oncoming traffic, attempted to cross at a fast walk, or, as described by Miller 'at a trot' toward the sign which he was intending to place in an upright manner. The point of impact occurred within a few feet of the center and in the south lane of the highway.
The physical facts as so established herein, show the Hicks car because of its speed at the time the deceased stepped from his truck, could not have been, and actually it was not, brought to a stop within two hundred feet. Further, the record reflects Hickman took only about four steps before he was struck, after which the automobile skidded one hundred ten feet. Thus, it seems certain Hickman was in peril from the moment he stepped upon the asphalt strip, and this being true, surely he would not have attempted to place himself in the path of the oncoming vehicle had he made proper observation. His failure in this respect constituted the plainest sort of negligence. Fuqua v. Martin, La.App.1949, 40 So.2d 404; Flowers v. Morris, La.App.1950, 43 So.2d 917; Wall v. Great American Indemnity Company, La.App.1950, 46 So.2d 655; Martin v. American Heating & Plumbing Company, La.App.1951, 52 So. 93; Bagala v. Kimble, La.App.1952, 62 So.2d 523, rehearing denied 1953.
Counsel for appellant contends, however, that...
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