Moses v. Sanders
| Decision Date | 06 April 1964 |
| Docket Number | No. 6116,6116 |
| Citation | 164 So.2d 177 |
| Parties | Grant MOSES v. Lola Bell SANDERS, Baty Sanders and Marquette Casualty Company. |
| Court | Court of Appeal of Louisiana — District of US |
Franklin & Keogh, by Joseph F. Keogh, Baton Rouge, for appellant.
Charles E. McHale, Jr., New Orleans, for appellee.
Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.
This is a tort action arising out of an accident which occurred on April 21, 1962, when plaintiff, Grant Moses, was struck by an automobile owned by Lola Bell Sanders and driven by Baty Sanders. Following trial in the court below plaintiff dismissed the suit as to Lola Bell and Baty Sanders and judgment was rendered in favor of the plaintiff and against Marquette Casualty Company, Lola Bell Sanders' liability insurer, in the amount of $5000.00 from which judgment the latter has appealed.
While there are considerable discrepancies (of varying degrees of importance) in the testimony, there is no dispute as to the following:
The accident occurred when the plaintiff was struck by the left front of the car driven by Baty Sanders at a point near Hooge's Store on Louisiana Highway No. 10 in the Parish of East Feliciana. Hooge's Store is situated in a rural area some sixty feet north of the shoulder of Highway 10 at about midway between the towns of Clinton and Greensburg. Highway 10 is a two lane blacktop road running east and west, level and straight for quite some distance on either side of Hooge's Store. The weather was clear and dry on the date of the accident. Just prior to the accident Baty Sanders was proceeding in the north lane of Highway 10 in a westerly direction towards Clinton. Plaintiff, just prior to the accident, had been standing next to a vehicle parked either entirely on the shoulder on the south of Highway 10 or partially on the shoulder and partially on the highway. As plaintiff left this car and proceeded in the direction of Hooge's Store, he was struck in the north lane by the vehicle driven by Baty Sanders.
The testimony of the witnesses Steve Daniels, Joe Jyles, Simon London and Alton E. Robertson establishes without doubt that just prior to the accident there was a car stopped about opposite Hooge's Store on the south side of the highway. Who was the driver of this car, the direction in which it faced, whether it was altogether off the road or partially thereon and whether it was the only car on the south of the road at that time are questions which were answered in a different manner by various of the witnesses. Be that as it may, however, all witnesses (with the exception of Robertson) were in accord in stating that plaintiff left the car beside which he had been standing and crossed the center line of the highway where he was struck. That he was negligent in so doing is made obvious by his own testimony as follows:
In spite of the gross negligence on the part of plaintiff it is argued that he is nevertheless entitled to recover under the doctrine of last clear chance. In discussing this aspect of the case it should first be pointed out that there is no evidence of excessive speed on the part of Baty Sanders. Further, it appears clear that he brought his vehicle to a stop almost immediately after the impact and that the damage to the car was very slight, consisting only of a small dent.
For the doctrine of last clear chance to be applicable, it is well settled that when defendant discovers or should have discovered plaintiff's peril he must have a reasonable opportunity to avoid the accident. On this point the witness Steve Daniels testified as follows:
'Q. Did you have to yell to Grant or anything else from the time you saw him step across the highway then into this west-bound lane of travel--did you have time to yell to him or anything before he got hit?
'A. Oh, no, sir, I couldn't tell nothing.
'Q. You mean you didn't have time to shout to him--
'A. I couldn't tell--
'Q.--or say, 'Look out, Grant', or anything?
'A.--nothing. The brakes said, 'Screech, bam.'
The witness Joe Jyles testified as follows:
'Q.--out or anything?
'A.--it was too quick.
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...... This constitutes negligence, even gross negligence. Derby v. Redmann, La.App., 180 So.2d 229; Moses v. Sanders, La.App., 164 So.2d 177; Soileau v. New Hampshire Insurance Company, La.App., 160 So.2d 793; Moore v. American Insurance Co. of Newark, ......
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...... Glatt v. Hinton, La.App., 205 So.2d 91; Kraft v. U. Koen & Company, La.App., 188 So.2d 203; Moses v. Sanders, La.App., 164 So.2d 177; Soileau v. New Hampshire Insurance Company, La.App., 160 So.2d 793. In attempting to carry this ......
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