Michelli v. Rheem Mfg. Co.

• Decision Date: 01 March 1948
• Docket Number: 18781.
• Citation: Michelli v. Rheem Mfg. Co., 34 So.2d 264 (La. App. 1948)
• Court: Court of Appeal of Louisiana — District of US
• Parties: MICHELLI v. RHEEM MFG. CO. et al.

34 So.2d 264

MICHELLI v. RHEEM MFG. CO. et al.

No. 18781.

Court of Appeal of Louisiana, Orleans.

March 1, 1948

Rehearing Denied March 15, 1948.

Writ of Certiorari Denied April 26, 1948.

Miazza & Drury, of New Orleans, for plaintiff and appellee.

Gordon Boswell and Stanley E. Loeb, both of New Orleans, for defendants and appellants.

McBRIDE Judge.

This is a suit brought by plaintiff, Joseph T. Michelli, against Rheem Manufacturing Company and its liability insurance carrier American Automobile Insurance Company, seeking to recover for personal injuries, for damage to his automobile, and for certain medical and other expenses, resulting from an automobile accident.The amount sued for is $3,581.88.

This case was consolidated with two other suits arising out of the same accident, so as to avoid repetitious trials.The other suits are entitled: Middleton v. Rheem Manufacturing Company and American Automobile Insurance Company, 34 So.2d 271, and Brousseau versus the same defendants, 34 So.2d 273, both decided by us this day.

After a trial on the merits there was judgment in favor of plaintiff and against both defendants for the sum of $1,831.88.Defendants have appealed.

The undisputed facts are that on October 9, 1939, at about 7:30 o'clock, A. M., a truck and semi-trailer of the Rheem Manufacturing Company, having an over-all length of 31 feet weighing 8,400 pounds, and loaded with 168 steel drums, was being driven by Joseph P. Smith, the employee of said defendant, on his company's business, in a northerly direction, or towards Baton Rouge, Louisiana, on its right-hand side of Airline Highway (U. S. No. 65), a twolane paved highway, within the corporate limits of the Town of Kenner, Louisiana.An automobile driven by Joseph S. Middleton was following the truck.Another automobile, owned and being driven by plaintiff, Joseph T. Michelli, was proceeding south, on its right-hand side of the highway, or toward New Orleans, at a speed of between 50 and 60 miles an hour.The truck's driver, upon reaching Lyons Street, which is a gravelled or shelled street, made a left turn to leave the highway and enter the said Lyons Street.This street runs at a right angle to the highway, and enters it from the west or river side, but does not cross the highway.When the cab of the truck had entered Lyons Street, and the semi-trailer had cleared the east traffic lane of the highway, Michelli, to aboid a collision with the truck, swerved his vehicle to the left to pass behind the trailer, and collided head-on with the Middleton automobile which had been following the trailer.The weather was clear, the visibility good and the roadway was dry.

Plaintiff attributes the accident to the negligence of the truck driver, alleging that had due prudence and care been exercised in the operation of the truck, it driver would have permitted plaintiff's automobile to pass before attempting the left turn, as he saw or should have seen plaintiff's oncoming car.The truck driver is also charged with failing to keep a proper lookout.

The suit is defended upon the grounds that Michelli was driving his automobile at a high and excessive rate of speed; that he failed to heed the highway signs warning traffic that the speed limit in the Town of Kenner was 25 miles an hour; in failing to observe and heed the hand signal given by the driver of the truck before the turn was made; in failing to have his car under proper control, and in not stopping or slowing his speed so that the truck and trailer could complete the turn.Defendants disclaim any responsibility, and in the alternative charge that Michelli was guilty of contributory negligence.

Joseph C. Brousseau, Lieutenant (senior grade), United States Naval Reserve, was a passenger in the Michelli car, and was sitting on the front beside the driver.Called as a witness for plaintiff, he testified that he and Michelli had left Baton Rouge at about 5:30 o'clock that morning to go to New Orleans.Near Gonzales, Louisiana, they gave a lift to two young men, who rode in the rear seat of the car.As they neared the locus of the accident the truck made a left turn and cut across the lane in which they were travelling, and that it was impossible for Michelli to stop, because the truck was 'right on top of us' when the turn was made; that Michelli had the alternative of either running into the truck or swerving to the left to get behind it.This witness stated that the truck was entirely blocking Michelli's side of the highway, the front part being on the shoulder of Michelli's traffic lane, and the rear wheels being on the black or center line of the highway.That when the truck started the turn, Michelli's automobile was between 75 and 100 feet from it, and that Michelli applied his brakes, but it was impossible to stop in that short distance.That when the Michelli car swerved, the rear wheels of the trailer were still on the black line, but the left-hand side of the roadway was open, and just as Michelli drove his car around the rear of the trailer it collided with the Midleton automobile, which was proceeding in the opposite direction.

Joseph S. Middleton, who is one of the plaintiffs in the three consolidated suits, testified in substance as follows: That he was driving on the highway in the direction of Baton Rouge; that just as he drove across the overpass north of Kenner there was a large trailer-truck ahead of him travelling in the same direction, which he attempted to pass; after pulling out from behind the truck and straddling the black line dividing the traffic lanes, he observed the Michelli car, which was 1200 to 1500 feet away, approaching from the opposite direction.Just then the truck driver signalled for a left turn, and he reduced his speed and fell in behind the truck.The truck proceeded to make the turn and was engaged in that maneuver when the Michelli car came from around the rear of the trailer and ran head-on into the Middeton car.Middleton states that the left turn had been made toward the Mississippi River, and that the cab of the truck had cleared the highway entirely, but the trailer blocked the river lane of the highway, that is to say to the left of Middleton.After falling in behind the Rheem truck, which he continued to follow, the next time he saw the Michelli car was at the moment of the collision.The witness states that the truck had been proceeding at about 20 to 25 miles an hour, but on the turn its speed was reduced to about 10 to 12 miles an hour, and that it continued to make the left turn at that speed without having to a stop.The truck made a wide, sweeping turn 'like transcribing a half circle or arc.'

Joseph T. Michelli, plaintiff, testified substantially as follows: He admits that he was driving between 50 and 60 miles an hour, and that when he first saw the Rheem truck it was approaching from the opposite direction on its proper side of the road.He did not notice the side road (Lyons street) and was under the impression that the truck intended to travel straight toward Baton Rouge.That he did not observe the driver giving a signal of any kind, and had no prior indication that the truck would make a turn until it actually started to cross the highway.When the truck turned, his car was about 50 feet away and he applied the brakes, but could not stop within that distance; that he endeavored to avoid striking the truck by swerving left to pass behind the trailer.He did not see the Middleton automobile until after he had swerved, and he tried to avoid crashing into it by pulling farther left toward the canal on the side of the highway, but was unsuccessful and the cars collided approximately head-on.Michelli states that the highway at that point is about 18 feet wide, and that the rear of the trailer was at about the middle black line and blocked the west traffic lane, and the cab was resting on the shoulder of the road.

Clinton Charles Gautreaux, one of the young men picked up by Michelli at Gonzales, and who rode on the rear seat, testified for plaintiff as follows: On the date of the accident, he and Beauman Gautreaux, who was killed in a subsequent automobile accident, were passengers in the Michelli automobile.The accident occurred on the outskirts of Kenner, Louisiana, on the Baton Rouge side of the overpass; the road into which the truck attempted to turn is a shelled road and does not entirely cross the highway.He further stated that as the Michelli car neared the place where the accident occurred, he observed the truck approaching from the opposite direction, and that it made a left turn; that he did not observe any signal given by the driver.That when the truck turned, Michelli applied his brakes; that the rear end of the truck was covering Michelli's lane and the front of it was located upon the shoulder of the road on Michelli's right-hand side; that Michelli swerved left to go behind the trailer, and a collision with the Middeton car occurred.The witness stated that it was impossible to pull to the right, because there would have been a collision with the truck.Gautreaux was unable to estimate the distance between Michelli's car and the truck when the turn was made.

Defendants' only witness was Joseph P. Smith, the driver of the Rheem truck, who stated that it was carrying a top-heavy load and was proceeding from New Orleans to St. Rose, Louisiana.That be drove at a speed of 25 miles an hour, and when he neared Lyons Street he slowed down to about 10 or 12 miles an hour to facilitate his making a left turn.That about 75 yards before reaching Lyons Street, into which he intended to turn, he extended his left hand as a signal and kept it in this position until the truck was entering Lyons Street, when he heard the impact of a...