Nelson v. Zurich Ins. Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: HARDY
• Citation: Nelson v. Zurich Ins. Co., 165 So.2d 489 (La. App. 1964)
• Decision Date: 28 May 1964
• Docket Number: No. 10208,10208
• Parties: Joe NELSON, Plaintiff-Appellant, v. ZURICH INSURANCE COMPANY, Waldrip Tire & Supply Company, Inc., L. D. Malone, New Hampshire Insurance Company, Arthur Branch, Defendants-Appellees.

Page 489

165 So.2d 489

Joe NELSON, Plaintiff-Appellant, v. ZURICH INSURANCE COMPANY, Waldrip Tire & Supply Company Inc., L. D. Malone, New Hampshire Insurance Company, Arthur Branch, Defendants-Appellees.

No. 10208.

Court of Appeal of Louisiana, Second Circuit.

May 28, 1964.

Rehearing Denied July 2, 1964.

Peters, Tuck & Ward, Shreveport, for apellant.

Bodenheimer, Looney & Jones, Mayer & Smith, Shreveport, for appellees.

Before HARDY, GLADNEY and AYRES, JJ.

HARDY, Judge.

This is an action for damages resulting from personal injuries sustained by plaintiff while a guest passenger in a car involved in an intersectional collision. Made defendants were the host driver, Arthur Branch, his liability insurer, New Hampshire Insurance Company, L. D. Malone, the driver, Waldrip Tire & Supply Company, Inc., the owner, and Zurich Insurance Company, the insurer of the other vehicle. From judgment in favor of defendants rejecting plaintiff's demands he has appealed.

The accident occurred about 8:00 o'clock, A.M., on July 28, 1962, at the intersection of Gilbert Street and Pierremont Avenue in the City of Shreveport, which intersection was controlled by an electric traffic light. The Plymouth sedan operated by Arthur Branch, and in which plaintiff was a guest passenger, was moving south on Gilbert Street and a Dodge three-ton, stake-body truck, loaded with cattle, was being driven by Malone east on Pierremont. At the time of the accident the hard surfaced streets were dry and there was no obstruction to visibility on the part of either driver. Gilbert Street is 25 feet 10 inches wide while Pierremont Avenue is 41 feet in width and accommodates four lanes of traffic. The impact between the front of the Dodge truck and the right side of the Plymouth automobile occurred in the northerly lane of eastbound traffic on Pierremont at a point just south of the center of the intersection with Gilbert.

Although plaintiff made specific charges of negligence against both Branch and Malone, the drivers of the respective vehicles involved, he testified that he remembered nothing about the occurrence of the accident, having been rendered unconscious by the force of the impact.

Each of the defendant drivers asserted that he entered the intersection in response to a favorable green light signal in his direction.

The district judge did not assign written reasons for judgment, but it is conceded by counsel for all parties that he based his judgment upon the conclusion that he was unable to determine whether either or both of the defendant drivers were guilty of any act of negligence which constituted a proximate cause of the collision. Unable to fix liability the district judge relied upon the opinion of this court in Demery v. Reliance Insurance Company, Inc. et al., 150 So.2d 44, and dismissed plaintiff's claim on the ground that he had failed to establish his right to recover, by a preponderance of the evidence.

There can be no dispute as to the conclusion that this accident was the direct result of negligence of one of the two drivers in entering the intersection on a red light or by the negligence of one, or both, of the drivers of failing to maintain a proper lookout and have his vehicle under such control as would permit him to anticipate and avoid a collision.

The testimony of the host driver, Branch, was that he was headed south on Gilbert Street and came to a stop some twelve feet north of the intersection because the red light of the traffic signal was showing in his direction; that he waited until the signal changed, whereupon he entered the intersection in response to the green light and proceeded at a speed of some 15 miles per hour; that he observed the approach of the Dodge truck at what he described as a rapid rate of speed but was unable either to stop or to accelerate the speed of his car in time to avoid the collision. This testimony was substantially corroborated by one William Moore, who was the only eye witness to the accident not involved either as driver or passenger in one of the vehicles. Moore testified that he was also driving south on Gilbert; that he came to a stop immediately behind the Branch automobile, awaiting the change of the signal, and proceeded to follow the Branch car into the intersection on the green light signal. This witness further testified that he observed the approach of the truck from the west on Pierremont; that it was moving at a rapid rate of speed, with brakes squealing and the vehicle zig-zagging as it approached the intersection. Realizing the imminency of a collision, Moore testified that he put his car in reverse and backed a few feet, apparently just as the other vehicles collided.

On behalf of the Waldrip defendants the testimony of Malone, the driver, and his two companions, Jessie Turel and J. L. Harper, all of whom were seated in the cab of the Dodge truck, was introduced. These witnesses uniformly testified that the Dodge truck was moving at a speed of approximately 20 miles per hour; the signal at the intersection changed from red to green when the truck was some 100 to 150 feet west of the intersection; they observed the Branch automobile when the truck was about 50 feet from the intersection, at which time it appeared that the Branch car was about to stop in the center of the intersection; they entered the intersection and the Branch car moved in front of them,; Malone applied his brakes and tried to turn to the right but was unable to avoid the collision.

The only physical circumstances, established by the testimony of the investigating police officers, which are of any pertinency, were that no evidences of skidmarks, indicating the application of brakes by the driver of either vehicle prior to the impact, were present; that the collision occurred just south of the center of the intersection, and that the Plymouth car was knocked forty feet, seven inches from the point of impact, coming to rest on the sidewalk neutral ground at the southeast corner of the intersection; while the Dodge truck stopped, headed southwest in the street near the southeast corner of the intersection.

Our first effort has been directed to the attempt to ascertain, upon the basis of the record before us, any preponderance of the evidence which would support a conclusion of negligence on the part of one or both of the drivers of the vehicles involved. In this effort we have failed, and repeated examination of the record serves only to sustain the conviction that negligence cannot be determined therefrom.

The directly opposed versions as to the occurrence of the accident, supported by the testimony of the respective parties defendant, cannot be reconciled, nor can we find any justification for according greater weight to one group of witnesses than to the other. All five of the eye witnesses who testified on trial are negroes. It is true that there are some discrepancies in the testimony of each of the witnesses but they are not of such magnitude or importance as would adversely affect credibility. It is also true that Malone, Turel and Harper, the occupants of the Dodge truck, were all employees of Waldrip, the owner of the truck, and were related by marriage, but these factors, aside from evidencing interest in the outcome of the litigation, were not sufficiently persuasive to tip the evenly balanced scales against the acceptance of their testimony.

We are well aware of the action taken by the Supreme Court in Derouen v. American Employers Insurance Company, 240 La. 486, 123 So.2d 896, in which the identical question, that is, which motorist entered an intersection on the green light, was presented for determination. The court found as a fact that the proximate and efficient cause of the accident was the concurrent failure of both drivers to keep a proper lookout and have their vehicles under proper control. This conclusion resulted from the determination as expressed by the court that both drivers '* * * allowed themselves to get too near the intersection before they looked to ascertain the color of the traffic light.'

The same solution is not available in the instant case. There is one significant difference in the cases resulting from the fact that in the Derouen case the traffic light was of the type which changed colors within a driving distance of one or two feet. Such is not true in the case before us where the light was of the semaphore type in which the change from green to red is preceded by a yellow caution signal.

If the testimony of Branch and his witness is to be believed, he stopped at the intersection awaiting the change of the traffic light and entered on a green signal. If the testimony of Waldrip and his witnesses is accepted, the light in his direction changed to green when he was from 100 to 150 feet distant, and, at 20 miles per hour, he had ample time to enter and clear the intersection before his passenge was barred by the change to a red light.

Obviously, the opposed versions are irreconcilable, and, unfortunately, we can find no factors which would reasonably enable us to conclude that one outweighs the other. To adopt either story as truth would be to convict the opposed witnesses of perjury, which result is justified only in instances in which credibility is successfully impugned or the interpretation of the testimony is inescapable.

We do not find that the application of the principle of res ipsa loquitur is strenously urged by counsel for any of the parties litigant. In any event, such application would not be appropriate under the facts of the instant case. The scholarly discussion of the doctrine of res ipsa loquitur and proof by inference by Professor Malone, IV LLR. 70, contains the following statement:

'A collision of two vehicles is not a proper accident for the application of res ipsa loquitur. In the absence of further proof it cannot be assumed that one driver, rather than the other, was negligent, nor is there any presumption that...