Mose v. Insurance Co. of State of Pa., 398

• Decision Date: 06 November 1961
• Docket Number: No. 398,398
• Citation: 134 So.2d 312
• Parties: Wilman MOSE, Plaintiff and Appellee, v. INSURANCE COMPANY OF the STATE OF PENNSYLVANIA, Defendant and Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 312

134 So.2d 312

Wilman MOSE, Plaintiff and Appellee, v. INSURANCE COMPANY OF the STATE OF PENNSYLVANIA, Defendant and Appellant.

No. 398.

Court of Appeal of Louisiana, Third Circuit.

Nov. 6, 1961.

Rehearing Denied Nov. 29, 1961.

Certiorari Denied Jan. 15, 1962.

Lewis & Lewis, by John M. Shaw, Opelousas, for defendant-appellant.

John E. Dupre, Ville Platte, and Daniel J. McGee, Mamou, for plaintiff-appellee.

Before FRUGE , HOOD and CULPEPPER, JJ.

CULPEPPER, Judge.

This is a tort action by Wilman Mose against the Insurance Company of the State of Pennsylvania for damages for personal injuries sustained when an unlighted wagon, being driven by the plaintiff, was struck from the rear by a 1957 GMC pickup truck, owned and operated by the defendant's assured, Thomas Oliver. After trial on the merits, the lower court awarded plaintiff judgment in the total sum of $2,644.50, from which judgment defendant has taken this appeal. Plaintiff has answered the appeal seeking an increase in the award to defendant's policy limit of $5,000.

The testimony is greatly conflicting, but the undisputed evidence shows that the accident occurred on October 22, 1959, on Louisiana Highway 29 in the town of Chataignier, Evangeline Parish, Louisiana, at a point where the said highway is of blacktop construction; that the speed limit was 45 miles per hour; that the weather was clear and dry; that on this particular day sunset was at 5:22 p.m.; that the said two-horse farm wagon was being driven by the plaintiff on the extreme right side of the highway when the pickup truck, being driven by Mr. Oliver, approached from the rear at a speed of about 40 miles per hour and struck the left rear wheel of the wagon, causing it to be turned over and broken to pieces in the ditch, and causing personal injuries to the plaintiff.

It is the contention of the plaintiff that the accident occurred at about 5:30 p.m., during daylight, and that Mr. Oliver, as he entered the town of Chataignier, passed an automobile operated by one Hillary Fontenot which was following the wagon; that Mr. Oliver successfully passed the Fontenot automobile, but when he attempted to pass the wagon, the right front of his truck caught the left rear of the wagon and knocked it over. Plaintiff contends that Mr. Oliver was obviously negligent in not keeping a proper lookout and not having his truck under sufficient control to avoid striking the said wagon.

It is the contention of the defendant that the accident occurred between 6 o'clock and 6:30 p.m., during the hours of darkness, and that Mr. Oliver was blinded by the lights of an oncoming vehicle being driven by Mrs. Yvonne Guillory, which prevented him from seeing the unlighted wagon in time to avoid the collision.

The principal issue is the time at which the wreck occurred and the degree of visibility at that time. For the plaintiff, five witnesses, including the plaintiff himself, testified it was daylight. For the defendant, four witnesses (including the accident report of Trooper Manuel) gave evidence that it was dark at the time of the collision. A brief review of the testimony of these witnesses is appropriate.

Hillary Fontenot and his wife, Mary Rose Fontenot, who were not related to the plaintiff, Wilman Mose, but had known him previous to the accident, testified that as they approached the town of Chataignier in their automobile they did not have their lights on because it was not yet dark, and they first observed the wagon approximately 5/8ths of a mile ahead of them. (Fontenot explained that he was once connected with horse racing and therefore could judge the distance accurately.) They stated that as they came closer to the wagon, the red pickup truck being driven by Mr. Oliver, without any lights, passed and cut in front of them and hit the wagon which was being driven by the plaintiff with its right wheels on the shoulder and its left wheels on the pavement. Both testified that the accident occurred at about 5:30 p.m. and that it was daylight. Both also testified that Trooper Manuel arrived at the scene approximately 1 hour after the wreck, at which time it was dark.

The next witness for plaintiff was Mr. Frank Brown, for whom the plaintiff, a 32 year old colored male, works as a farm laborer occasionally. Mr. Brown testified that from his home nearby he heard the crash and drove in his car, without lights, to see what had happened. He stated that the wreck occurred at about 5:30 p.m. during daylight.

Plaintiff testified that he quit work at about 4:30 p.m., after which his employer, Mr. Miller, took him part way home. As he was walking the remaining short distance to his house, one Vincent Ceasar, a 19 year old Negro male, drove up in the wagon on which was loaded a bed belonging to plaintiff's mother, whose furniture Ceasar was moving that afternoon from another place to the home of plaintiff. Plaintiff got on the wagon with Ceasar and they drove to plaintiff's home where they unloaded the bed and then started to drive back to Chataignier. Plaintiff testified that they had driven approximately two miles when Vincent Ceasar, who had been driving up until that time, asked plaintiff to hold the reins while he rolled a 'Bull Durham' cigarette. The accident occurred about 5 minutes after plaintiff took the reins. Plaintiff stated that he was driving the wagon with both the right and the left wheels entirely off the pavement when he heard the truck coming, but did not turn around to look, and the next thing he knew the wagon had been struck and he was lying dazed in the ditch. Plaintiff admitted that the wagon had no lights. He stated further that just prior to the crash he did not see any cars approaching from the front nor did he see any cars with their lights on.

Vincent Ceasar, who was with plaintiff on the wagon, was actually called as a witness for the defendant for the apparent purpose of testifying as to how long the plaintiff had been driving the wagon immediately before the collision. Ceasar admitted having made a statement before trial, but on the witness stand said that he could not remember what statement he had made as to the length of time plaintiff had been driving the wagon. On this development, counsel for defendant plead surprise and that the witness was hostile. Without objection from plaintiff, the defendant was allowed to try to impeach his own witness, Ceasar, by showing a prior contradictory statement, but all the witness would testify to was that he had made a statement but he couldn't remember what he had said nor could he testify at the trial as to how long plaintiff had been driving before the wagon was struck. He did say that he asked the plaintiff to hold the reins while he, Ceasar, rolled a cigarette. During examination by plaintiff, the witness Ceasar testified that it was daylight at the time of the accident, and that he had not seen any cars with their lights on.

The first witness for defendant was Mr. Thomas Oliver, who testified that on the afternoon in question his hay baler broke down at about 4:55 p.m. and he phoned 'Roy Tractor Company' in Ville Platte to remain open until he could go there for the necessary parts. Mr. Oliver testified that he drove to Ville Platte and had to wait 10 or 15 minutes for certain chains to be made up on the new parts, after which he left Ville Platte and started toward Chataignier, some 10 or 11 miles distance, for the purpose of arranging for certain laborers whom he needed the next day in his hay baling operations. Mr. Oliver testified that as he approached Chataignier he had his lights on. He didn't remember passing any vehicle, but an automobile approaching him from the front had on its bright lights which blinded him. He signaled by dimming his own lights and then just as the approaching vehicle dimmed its lights, he saw the wagon for the first time about 20 yards in front of him on the extreme right side of the highway. Mr. Oliver testified that he had been going about 40 miles per hour, but that he slowed when blinded by the approaching bright lights and that on seeing the wagon he immediately applied his brakes and cut to the left but was unable to avoid striking the wagon. Mr. Oliver estimated that the collision occurred at about 7:00 p.m. and he testified positively that it was dark and that both he and the driver approaching him had on their headlights.

Mrs. Yvonne Guillory testified that a short time before the accident she herself had been driving into Chataignier, in the same direction that the wagon was traveling, and that it was dark and she had her lights on. As 2 or 3 cars approached her she was partially blinded by their lights, but she saw a 'movement' on the side of...