Palmer v. State

• Decision Date: 17 December 1980
• Docket Number: No. 7990,7990
• Citation: 393 So.2d 427
• Parties: William M. PALMER, Plaintiff-Appellant, v. STATE of Louisiana et al, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 427

393 So.2d 427

William M. PALMER, Plaintiff-Appellant, v. STATE of Louisiana et al, Defendant-Appellant.

No. 7990.

Court of Appeal of Louisiana, Third Circuit.

Dec. 17, 1980.

Rehearing Denied Feb. 9, 1981.

Brittain & Williams, Jack O. Brittain, Natchitoches, for plaintiff-appellant.

Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, William J. Doran, Jr., Baton Rouge, Watson, Murchison, Crews, Arthur & Corkern, Ronald E. Corkern, Jr., Natchitoches, Gist, Murchison, Hughes & Munsterman, David A. Hughes, Alexandria, for defendant-appellee.

Before FORET, CUTRER and LABORDE, JJ.

FORET, Judge.

This is a tort action. William Palmer (Plaintiff) seeks to recover for personal injuries he sustained in a vehicular collision. The defendants are Wilfred Sepulvado, the driver of the other vehicle, and his liability insurer, Insured Lloyds. The Louisiana Department of Transportation and Development; Albert Cohen, Allie Cohen, and Claude Mason, individually and d/b/a Buckeye Landing and their liability insurer, Houston General Insurance Company (Houston); L. J. Ernest and Company and its employee, Richard Bruce, are also named defendants.

The trial court rendered judgment on December 14, 1979, in favor of plaintiff and against Wilfred Sepulvado in solido with his liability insurer, Insured Lloyds, in the sum of $5,000.00, and against Wilfred Sepulvado, individually, in the sum of $45,000.00. The trial court also rendered judgment against plaintiff, dismissing his demands against the remaining co-defendants with prejudice.

William Palmer filed a motion for a new trial and/or rehearing on March 10, 1980, which was denied. Insured Lloyds appealed suspensively. Wilfred Sepulvado and William Palmer appealed devolutively.

There are two major issues presented by the parties on appeal:

(1) Whether Wilfred Sepulvado was guilty of negligence for which he should be held liable to plaintiff, and

(2) Whether the negligent placing of the Buckeye Landing sign in the highway right-of-way was a cause-in-fact of the injuries suffered by plaintiff.

FACTS

This suit arose out of a vehicular collision which occurred on March 3, 1977, at approximately 8:35 A.M. in the intersection of La. 476 and La. 3129 in the southern part of Sabine Parish. Louisiana 3129 begins at this intersection. (See attached sketch prepared by plaintiff.)

The collision occurred between a 1976 Chevrolet pickup truck owned by Ed Jones, Jr., Inc. and being operated by William M. Palmer, and a 1973 two-ton pulpwood truck owned and operated by Wilfred Sepulvado.

Palmer approached the intersection from the east on a gravel road (parish road), and was required to stop by a stop sign located on the right side of that road. Wilfred Sepulvado was approaching that same intersection from the north of La. 476, which is the favored road at this point.

The only eye-witness to the accident is Wilfred Sepulvado ¹. He testified that as he was approaching the intersection, traveling south, approximately 40 miles per hour, he saw Palmer go up to the stop sign on the parish road and stop.

There was a distance of some 43 feet between the stop sign and the east edge of the hard surface of La. 476. It appears that Palmer came to a full stop within this 43-foot area and then proceeded onto La. 476 intending to go through the intersection and continue southwest along La. 476. He did this without looking to his right again after having stopped. Sepulvado's vehicle struck Palmer's vehicle broadside in the west (south-bound) travel lane of La. 476, and plaintiff was severely injured.

Plaintiff alleges that Wilfred Sepulvado was guilty of negligence, proximately causing this accident, for failing to see what he should have seen and for failing to keep his vehicle under proper control.

SEPULVADO'S ALLEGED NEGLIGENCE

There is no evidence in the record regarding the posted speed limit on La. 476, in the vicinity of the intersection, and there is some dispute as to how fast Sepulvado was traveling at the time of the accident. However, plaintiff makes no argument that he was speeding.

Plaintiff contends that Sepulvado failed to see what he should have seen, i. e., that plaintiff was moving into the intersection and that a collision was imminent. He notes that Sepulvado testified that after he saw plaintiff stop for the stop sign on his left, he then glanced off to his right for approximately one to two seconds. Plaintiff argues that Sepulvado's glancing off to the right during this period of time constitutes negligent conduct.

The trial court agreed and found Sepulvado to have been negligent. That finding, as set out in the trial court's reasons for judgment, was:

"The physical evidence and the admissions of Mr. Wilfred Sepulvado establish that, more probably than not, the collision and resulting injuries and damages were caused by the negligence of Mr. Wilfred Sepulvado.

"Mr. Sepulvado, who, considering Mr. Palmer's condition is the only eye witness, can give no complete account of the entire episode, and the Court suggests that he was inattentive. He saw Mr. Palmer stop. He could see his vehicle in its entirety. Then he, Sepulvado, traveling at a rate of speed that probably was nearer 55 mph than 40 mph, looked off to his right. When he finally looked back down the road in front of him, i. e. in the direction in which he was driving, Mr. Palmer's vehicle was in the east lane of the Scenic Highway. Mr. Sepulvado applied his brakes, skidded the pulpwood truck approximately 57 feet, struck the Palmer vehicle broadside with sufficient force to knock its sideways, 112 feet, down into a ditch.

"Obviously, Mr. Sepulvado did not see the Palmer vehicle from the time it was stopped, near the stop sign, until it was actually in the intersection. During the interim Mr. Sepulvado was gazing off to the west, while his vehicle sped south.

"... To look off, out west, completely inattentive to the roadway in front of him, and of the vehicle preparing to enter the intersection constituted negligence, which negligence was, in the opinion of this Court, the proximate cause of the collision and resulting injuries and damages."

We disagree with the trial court's finding. Our Supreme Court in Koob v. Cooperative Cab Company, 213 La. 903, 35 So.2d 849 (1948), at page 851, stated the duty of care which must be exercised by the motorist on a favored road. It is:

"The law in this state is well settled that a motorist who is proceeding on a right-of-way street, upon approaching an intersection where traffic is required under a city ordinance, and is warned by stop signs, to come to a complete stop before entering the intersection, should not be held to the same degree of care and vigilance as if no ordinance existed or stop signs were erected. The danger at such an intersection is less than that at a corner where no stop signs have been erected, and therefore less care is required of the driver on a favored street. The motorist on the right-of-way street, with knowledge of the location of such a stop sign, has a right to assume that any driver approaching the intersection from the less favored street will observe the law and bring his car to a complete stop before entering the intersection, and such motorist can indulge in this assumption until he sees, or should see, that the other car has not observed, or is not going to observe, the law."

See also Henderson v. Central Mutual Insurance Company, 238 La. 250, 115 So.2d 339 (1959); Dorty v. Zurich Insurance Company, 236 So.2d 837 (La.App. 2 Cir. 1970).

As the driver on the favored thoroughfare, Sepulvado had the right to assume the vehicle on the intersecting street would stop and yield the right of way, and he could continue under this assumption until such time he saw or should have seen that the other vehicle was ignoring the stop sign. Koob v. Cooperative Cab Company, supra; Bourgeois v. Francois, 245 La. 875, 161 So.2d 750 (1964); Fontenot v. Lucas, 228 So.2d 211 (La.App. 3 Cir. 1969), writ denied, 255 La. 279, 230 So.2d 587 (1970); Otillio v. Dolese, 236 So.2d 646 (La.App. 4 Cir. 1970); Clark v. Allstate Insurance Company, 279 So.2d 237 (La.App. 2 Cir. 1973); Triche v. Commercial Union Insurance Company, 329 So.2d 784 (La.App. 1 Cir. 1976).

Furthermore, it is only in the exceptional case where the right-of-way motorist could have avoided the accident by the exercise of the very slightest degree of care that he will be considered guilty of negligence. Bourgeois v. Francois, supra; Otillio v.Dolese, supra; Clark v. Allstate Insurance Company, supra; Triche v. Commercial Union Insurance Company, supra.

The evidence shows that Sepulvado saw plaintiff bring his vehicle to a complete stop before entering the intersection. Sepulvado then glanced to his right for approximately one to two seconds. He testified that his reason for doing this was to check for anything that may have been approaching the intersection from that direction. Upon seeing nothing, Sepulvado then turned his attention to La. 476 and saw plaintiff entering the intersection. He hit his brakes, but was unable to stop, and skidded some 57 feet before colliding with plaintiff's vehicle. We find that Sepulvado was unable to avoid the accident by the exercise of the very slightest degree of care.

In Mauthe v. Gibson, 367 So.2d 1280 (La.App. 3 Cir. 1979), writ denied, 369 So.2d 156 (La.1979), this Court stated, on page 1282, that:

"It is elementary that negligence is determined from the facts and circumstances that existed at the time the accident occurred and if a person acted as a reasonable and ordinarily prudent person under these circumstances, he cannot be found to have been negligent. Pence v. Ketchum, 326 So.2d 831 (La.1976); Fire and Casualty Ins. Co. of Conn. v. Garrick, 312 So.2d 103 (La.App. 1st Cir. 1975), application denied, 313 So.2d 845 (La.1975)."

See also Lafleur v. City of Ville Platte, 367 So.2d 121 (La.App. 3 Cir. 1979), writ denied, 368 So.2d 124 (La.1979).

We...