Moses v. Mosley
| Decision Date | 05 November 1962 |
| Docket Number | No. 631,631 |
| Parties | Arval M. MOSES et ux., Plaintiffs and Appellants, v. C. D. MOSLEY, Defendant and Appellee. |
| Court | Court of Appeal of Louisiana — District of US |
William C. Pegues, III, DeRidder, for plaintiffs-appellants.
Hall & Coltharp, by L. H. Coltharp, Jr., DeRidder, for defendant-appellee.
Before TATE, SAVOY and HOOD, JJ.
This is a damage suit instituted by Arval M. Moses and his wife against C. D. Mosley, arising out of an automobile accident which occurred about 10:20 A.M. on January 28, 1961, in Beauregard Parish. Plaintiffs contend that the accident was caused by the negligence of defendant's minor son, who was driving defendant's car at the time of the accident. Defendant denies any negligence on the part of the driver of his car, and in the alternative he specially pleads contributory negligence on the part of Mrs. Moses, the driver of plaintiffs' automobile. After trial of the case, judgment was rendered by the trial court in favor of defendant, rejecting plaintiffs' demands, and plaintiffs have appealed from that judgment.
Although the trial judge did not assign written reasons for judgment, it is obvious that he concluded either that the driver of defendant's car was free from negligence or that plaintiffs are barred from recovery because of contributory negligence.
The weather on the morning of the accident was very cold and inclement, with freezing rain and sleet, rendering driving conditions extremely difficult, and limiting visibility to about 200 feet. Mrs. Moses and her son had driven to Dry Creek earlier that morning to buy groceries, and at the time of the accident they were returning to their home, traveling in a westerly direction on a hard surfaced rural highway. The rain or sleet was freezing on the windshield of the car, so Mrs. Moses had stopped periodically to let her son get out and wipe off the windshield with a cloth.
Immediately before the accident occurred, Mrs. Moses had driven around a long curve in the highway when she decided to stop the car again to allow her son to clean the windshield. She thereupon stopped the car with its right wheels about one foot off the paved portion of the highway, and with the left side of her car occupying about 4 1/2 or 5 feet of the north lane of the main traveled portion of it. By stopping in that position she left about 12 or 12 1/2 feet remaining between the left side of her car and the south edge of the highway. The evidence shows that because of this curve and a high embankment on the south side of the highway, in the center of the curve, the driver of a vehicle approaching the parked automobile from its rear could not have seen it, even under ideal weather conditions, until he reached a point within 120 feet of the Moses car.
After Mrs. Moses had stopped her car in that position and her son had gotten out and had started to wipe the windshield, defendant's car approached from the east, being driven at a speed of about 40 miles per hour. The driver of defendant's car states that he first saw the Moses car when he was about 50 feet from it, and although he applied his brakes he was unable to avoid a collision. The front of his car struck the left rear of the Moses vehicle, and as a result of this collision, plaintiff's car was damaged and Mrs. Moses sustained personal injuries.
The only explanation offered by defendant's son as to why he did not see the Moses car until he reached a point within 50 feet of it was that ice was on the windshield of his car and it impaired his vision. He states that he applied his brakes immediately and did everything possible to bring his car to a stop after he saw the Moses car, but that he was unable to avoid colliding with it. He concedes that the accident may have been avoided if he had been driving a lettle slower.
We think the law is settled that when visibility is materially impaired because of smoke, fog, or other atmospheric conditions, including rain, sleet and iceforming on the windshield, a motorist is held to a duty of operating his vehicle with an unusually high degree of care. He should reduce his rate of speed to such an extent and keep his car under such control as to reduce to a minimum the possibility of accident from collision, and as an extreme measure of safety it is his duty, when visibility ahead is not possible or is greatly obscured, to stop his car and remain at a standstill until conditions warrant going forward. He does not have the right to assume that his course of travel is free from danger or obstruction in the absence of his ability to see clearly ahead, but if he continues to travel as if he knew there was perfect clearance ahead, he does so at his own risk and peril. See Ardoin v. Southern Farm Bureau Casualty Insurance Company, La.App. 3 Cir., 133 So.2d 129, and cases cited therein.
In the instant suit we are convinced that the driver of defendant's car was negligent in failing to maintain a proper lookout, in failing to keep his vehicle under proper control and in driving it at an excessive rate of speed under the circumstances presented here. His negligence in that respect was one of the proximate causes of the accident.
The next important question presented is whether the driver of plaintiffs' automobile also was negligent, and, if so, whether her negligence was a proximate and contributing cause of the accident, barring plaintiffs from recovery.
At the point where the accident occurred there was a shoulder on the north side of the road about eight feet wide. Five feet of this shoulder were flat and level with the pavement, and the remaining three feet of its width sloped toward the ditch. The evidence establishes that Mrs. Moses could easily and safely have parked her car completely on the shoulder of the highway, and thus would not have obstructed any part of the main traveled portion of the road. She explains, however, that she was afraid to pull too far off the highway because the shoulders appeared to be 'muddy and boggy,' and she thought she had left enough room for another car to pass. When asked why she did not stop sooner, she replied:
'Well, I wanted to clear the--make...
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