McDaniel v. Welsh

• Decision Date: 13 April 1970
• Docket Number: Nos. 7947,7948,s. 7947
• Citation: 234 So.2d 833
• Parties: John Wilson McDANIEL v. Ernest WELSH et al. Margaret A. OWENS v. Ernest WELSH et al.
• Court: Court of Appeal of Louisiana — District of US

Page 833

234 So.2d 833

John Wilson McDANIEL v. Ernest WELSH et al.

Margaret A. OWENS v. Ernest WELSH et al.

Nos. 7947, 7948.

Court of Appeal of Louisiana, First Circuit.

April 13, 1970.

Rehearings Denied May 25, 1970.

John T. Caskey, Jr., Baton Rouge, for appellants.

Dodd, Hirsch, Barker, Avant & Wall, by John L. Avant, and D'Amico, Curet & Bush, by Sam J. D'Amico, Baton Rouge, for appellees.

Before LANDRY, SARTAIN and ELLIS, JJ.

LANDRY, Judge.

These consolidated cases arise from a two car intersectional collision allegedly occasioned by the malfunctioning of a traffic control signal situated at the intersection of Florida Boulevard and North 22nd Street in the City of Baton Rouge. Defendant, Parish of East Baton Rouge (Parish), appeals from judgment in favor of plaintiff, John Wilson McDaniel, for the death of his major daughter, Katie McDaniel, and in favor of plaintiff, Margaret A. Owens, for personal injuries and related medical expenses. We affirm the judgments rendered below.

The accident occurred at approximately 9:00 P.M., July 5, 1966. Mrs. Owens, accompanied by her guest passenger, Katie McDaniel, was proceeding southerly along North 22nd Street, a multi-laned roadway, in the right or outside southbound lane. She proceeded into the intersection with Florida Boulevard (Florida) on a green or favorable traffic signal. The Owens vehicle was struck on its right side by an eastbound vehicle being driven by Ernest Welsh who was traveling in the left or inside eastbound lane of Florida, a multi-lane thoroughfare. The traffic signal facing Welsh as he entered the intersection was, allegedly, not operating.

Mrs. Owens made demand upon the Parish, the City of Baton Rouge, and Welsh. Mr. McDaniel sued the Parish, the City, Mrs. Owens and her insurer, Great American Insurance Company. Both actions against the City were dismissed on peremptory exceptions and no appeal was taken in either instance. The trial court held that the sole proximate cause of the accident was the failure of the Parish to either inspect, properly maintain or properly repair the traffic signal. Both actions were dismissed as to all remaining defendants. The Parish has appealed. Neither plaintiff has appealed or answered the appeal taken by the Parish.

The record shows that the intersection in question is a crossing of two major thoroughfares. At the scene Florida is a four-lane roadway and North 22nd Street consists of six lanes. The intersection is controlled by a battery of electric semaphore traffic signals with standard red-yellow-green lights excepting that there are double red lenses for stop in combination with left turn arrows on all four sides of the crossing. Right turn arrows are also provided for north and south bound traffic on North 22nd Street . The lights are regulated by a control system consisting of an electromatic three phase controller, Model 1033, and six S--R--4 relays, one for each of the system's six signal circuits. The controller and relays are contained in a box affixed to a utility pole at one corner of the intersection.

It is conceded that at 11:30 A.M. on the morning of the accident, Claude L. Cranfield a Parish traffic device maintenance man, was dispatched to the intersection in response to a report that the right turn arrow controlling northbound traffic on North 22nd Street was malfunctioning in that it was 'flickering'. Cranfield replaced the controller which operated all the signals. He noted that this corrected the reported difficulty, but he did not check the remaining facets of the lights. At approximately 4:45 P.M ., on the afternoon of the accident, Ortho R. White, traveling easterly on Florida, observed that the red light controlling east bound vehicles was non-operative. This information was relayed to the City Police Department and at approximately 5:18 P.M. City Policeman James Eusey was sent to investigate. Officer Eusey observed the signals for approximately five full cycles. Finding all lights to be in good order, he departed the scene. This accident occurred at approximately 9:00 P.M.

The Owens vehicle was being followed by a City garbage truck driven by Ervin J. King. The Welsh car was proceeding ahead of an automobile being driven by Patrick Dixon. Both following drivers were eye witnesses to the accident.

Mrs. Owens' testimony is simply that she has no recollection of the accident or the events immediately prior thereto.

King's testimony is that he was accompanied by two fellow employees. He was returning to the City motor pool after having worked overtime. Proceeding in the outside southbound lane approximately 30 feet behind Mrs. Owens, King became irked at her slow speed. He was positive the light was on green for southbound vehicles on North 22nd Street when Mrs. Owens entered the intersection and he entered behind her while the light was still green. One of his fellow workers called his attention to the Welsh vehicle approaching from the west on Florida. He then glanced to his right and observed Welsh coming at an estimated speed of 65 miles per hour. He stated that the force of the impact cleared the intersection of both vehicles permitting his passage without becoming involved in the collision. After stopping his car on the shoulder of Florida, he observed Miss McDaniel lying on the pavement in the intersection and saw her move one time. He observed Mrs. Owens lying on the seat of her car, partially in and partially outside of her vehicle. He noted she was unconscious, bleeding, moaning and groaning.

Patrick Dixon testified he was proceeding easterly along Florida and stopped at 19th Street (west of the scene of the accident), in the outside lane, behind a Ford automobile. Welsh's car was stopped in the inside lane at 19th Street abreast of the Ford. Dixon noted some conversation between the occupants of the vehicles ahead, and when the light turned green, both of the forward vehicles jumped off way out in front. Dixon was approximately 300 feet west of the Welsh car when Welsh approached the intersection at North 22nd Street. Dixon was positive the signal at North 22nd Street was not in operation as Welsh approached. He noted that it was quite dark and that even though he was familiar with the intersection, he did not see the light fixture suspended over the roadway. He stopped at the scene and directed the attention of the investigating officer to the fact that the light at North 22nd Street was functioning intermittently for traffic traveling easterly on Florida.

It was stipulated that Mrs. Dixon, a passenger in the Dixon car, would confirm her husband's testimony.

Defendant Welsh testified he was traveling easterly in the inside lane of Florida, at about 45 miles per hour, accompanied by Mary Toussaint. He did not see a traffic signal at the intersection of Florida and North 22nd Street. He variously estimated his distance at from 10 to 50 feet from the light when he saw the non-functioning signal. He stated the accident was imminent when he observed the Owens vehicle. He also stated he applied his brakes but to no avail. Welsh, who was approximately 30 years old, stated he had lived in Baton Rouge all his life but had been driving only two or three years prior to the accident and was not aware of the signal at this particular intersection. He denied that he was drag racing with the Ford automobile mentioned by Dixon. Welsh explained that his vehicle was a 1955 model car and that because the carburetor was defective, the automobile would not travel much faster than 45 miles per hour.

Miss Toussaint's testimony is that her host was proceeding at about 35 miles per hour. She did not see the Owens car prior to the accident but was aware of a Ford traveling next to the Welsh car. She was certain the light at North 22nd Street was green as Welsh approached that intersection.

The accident was investigated by Officers Ray Cook, William L. Weaver and James Eusey. Cook testified the eastbound red traffic light on Florida was malfunctioning intermittently after the collision. Cook directed Weaver's attention to this circumstance. He also stated a passenger in the garbage truck advised him that the Owens vehicle proceeded through the intersection on a green light. Cook's investigation disclosed no evidence of skid marks left by the Welsh car. Officers Weaver and Eusey verified Cook's testimony concerning the intermittent malfunctioning of the eastbound Florida Street red light following the accident.

Mr. Cranfield acknowledged changing the controller on the morning of the accident. After the accident, he was again summoned to the scene, arriving at approximately 10:30 P.M. He remained at the intersection until 12:30 A.M. the next morning and observed no malfunctioning of the light. He also noted that the controller he installed had been repaired in the Parish's maintenance and repair shop. He could not explain why the light malfunctioned at and just after the time of the accident but worked properly for the two hour period he was at the scene. Following the accident, as a matter of precaution, he readjusted the S--R--4 relay which controlled the red signal for eastbound Florida traffic. It was Cranfield's opinion that the previously observed failure resulted from either (1) a bad contact in the main controller; (2) a loose wire in the signal itself, or (3) a poor contact in the S--R--4 relay which controlled the light that failed to operate. He acknowledged that on the day after the accident, on orders from his superiors, he replaced the traffic controller he installed the day before.

City Traffic Engineer, Duaine T. Evans, assigned the malfunction to either failure of the relays, failure of the controller or a loose connection in the wiring. He acknowledged that traffic signal short circuits frequently correct themselves. He also acknowledged that no further problem was encountered with this particular light after the controller was replaced on the day...