Pelloat v. State Through Dept. of Highways

• Court: Court of Appeal of Louisiana
• Writing for the Court: BAILES
• Citation: Pelloat v. State Through Dept. of Highways, 198 So.2d 674 (La. App. 1967)
• Decision Date: 17 April 1967
• Docket Number: 7020,Nos. 7019,s. 7019
• Parties: Jacques PELLOAT, Jr., et al., Plaintiffs-Appellees, v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS, et al., Defendants- Appellants.

Page 674

198 So.2d 674

Jacques PELLOAT, Jr., et al., Plaintiffs-Appellees, v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS, et al Defendants- Appellants.

Nos. 7019, 7020.

Court of Appeal of Louisiana, First Circuit.

April 17, 1967.

Rehearing Denied May 29, 1967.

J. Elton Huckabay, Philip K. Jones, Baton Rouge, for appellants.

Garic Kenneth Barranger, of Barranger, Barranger & Jones, Covington, for appellees.

Before LANDRY, SARTAIN and BAILES, JJ.

BAILES, Judge.

This tort action was instituted by plaintiff, individually and as confirmed natural tutor of his minor children, to recover damages for the wrongful death of his wife and mother of the minor children. Named as defendants were the State of Louisiana, through the Department of Highways (Department), Moey Newsome, the Policy Jury of St. Tammany Parish, the Parish Council of Jefferson Parish and the Greater New Orleans Expressway Commission. Also, certain third party pleadings were filed impleading other entities; however, in view of the subsequent action of the plaintiffs, we need not discuss that phase of the action.

The cause of action asserted in this suit arose from a two car collision between the vehicles of Marshall F. Badeaux and Moey Newsome. The collision occurred on September 1, 1956, at the intersection of the northern approach of the Greater New Orleans Expressway and U.S. Highway 190.

Mr. Badeaux, the driver of his own vehicle, died on the second day following the accident of injuries he received in the collision. Mrs. Lucille Guidry Pelloat, a passenger in the Badeaux automobile was killed, and Theodore C. Keyes, the other passenger in the Badeaux automobile, received injuries which have rendered his totally and permanently disabled.

Mrs. Lillian Davenport, widow of Marshall F. Badeaux, Sr., and Theodore C. Keyes have filed separate actions against the same defendants to recover damages sustained. Although consolidated for the purposes of trial in the lower court, and for hearing before this court, and while the reasons assigned for judgment in this case will control the disposition of the other consolidated cases, separate judgments will be rendered in each case.

No question is presented here of legislative authority, or the lack thereof, for the bringing of these consolidated suits.

During trial on the merits in the district court, the plaintiffs dismissed their actions against all defendants, except the State of Louisiana and Moey Newsome. After trial, the district court rendered judgment in favor of all plaintiffs and against the State of Louisiana. No judgment, in any of the suits, has been rendered against Newsome. From this adverse judgment, the State of Louisiana has appealed in all cases. The plaintiffs answered the appeals, seeking an increase in quantum. We find the judgment must be reversed, and all claims asserted against the State of Louisiana dismissed at plaintiff's cost.

Badeaux, Keyes and Mrs. Pelloat were employed by the Southeast Louisiana Hospital at Mandeville, Louisiana. On this tragic night, at about 10:45, these three persons were on their way to work. The Badeaux vehicle was traveling from west to east on Highway 190, and at the same time, Moey Newsome, accompanied by a passenger named Thelma Winston, was traveling north on the causeway approach road, or away from the causeway. The sole surviving occupant of the Badeaux vehicle, Mr. Keyes, because of brain injury and damage, was not mentally capable of testifying to any of the facts surrounding the collision. Both Newsome and Thelma Winston testified by deposition.

It appears that Highway 190 was a hard surfaced blacktop highway, the paved portion of which had a width of about 22 feet, and the right of way had a width of about 100 feet. The approach to the causeway was a four lane paved highway with two lanes each provided for northbound traffic and southbound traffic, separated by a neutral ground or median strip. The width of the right of way of this approach road was 200 feet. By designation of the Department, Highway 190 had the right of way over the approach road. From the photographs, maps and plats in the record, it appears that a stop sign was located on the right shoulder of the causeway approach and also one of the median strip which required all vehicles proceeding north (a like stop sign controlled traffic flowing south) into or across this intersection to stop before entering or crossing Highway 190.

The evidence unquestionably supports the fact that both Mr. Badeaux and Moey Newsome were quite familiar with the intersection, each having had almost daily experience with the crossing even though the causeway had been formally opened only two days before the accident. Further, both were long time residents of the area. No unusual atmospheric conditions existed at this time; the roadway was dry and the weather was clear.

Both Newsome and his companion, Thelma Winston, testified that he, Newsome, stopped before entering, or attempting to cross, the intersection. He gave the following account of his actions just prior to the collision:

Deposition, page 25

'Q. * * * I say from the time you entered the highway proceeding toward this intersection, at what speed were you traveling?

A. I'd say between thirty and thirty-five miles an hour.

Q. And was that speed reduced in any way as you approached the intersection?

A. Yes, I had to reduce it to stop.

Q. Did you stop suddenly or was it a jerky stop, or what.

A. I stopped just like you are supposed to.

Q. How long did you remain stopped?

A. Not long.

Q. Did you look in any direction other than forward before you proceeded?

A. I looked both directions.

Q. How far behind the actual intersection, that is, the beginning of the line of Highway 190 that crosses the north approach, did you stop? Did you stop right there or a few feet behind, or what?

A. Well, I couldn't give no direct measurement. I stopped before I go to that highway.

Deposition, Page 101

Q. And how far behind the intersection where the actual highway portion of U.S. 190 goes would you estimate that was that you brought your car to a stop?

A. I'd say it was a good little distance out of danger zone. I wouldn't put no definite figure on it.

Q. Would it be ten feet, fifteen feet?

A. It could have been eight or ten feet.

We find the record amply supports the finding of fact that Newsome stopped his vehicle before entering the intersection. He testified that he stopped about eight or ten feet from the near lane of Highway 190. ('* * * a good little distance out of danger zone * * * It could have been eight or ten feet.') From our appreciation of the photographs identified as T. L. James 1 and 2 and Plaintiffs 1, 2 and 6, from the place where he stopped, Newsome had an unobstructed view of Highway 190 to his left from an unlimited distance, the left being the direction from which the Badeaux vehicle was approaching.

The trial court assigned the following reasons as the basis for finding that the Department was liable to plaintiff:

'The Highway people appraised the situation as of the present and the past giving no consideration to future needs and requirements, not even for expectancy of requirements extending one month into the future. A blind spot existed between the Highway authorities, employees, engineers, managers, etc. and the problems normal to expect as a result of the opening of the Expressway. To this extent they were deficient as well as negligent. The negligence of the Highway employees in failing to erect stop or warning signs on the West approach of 190 or State 22 to the Expressway and the absence of the warning signs of any nature was and is the proximate cause of the injury and damages suffered by the various and sundry plaintiffs as a result of the accident.'

The plaintiff, in his supplemental brief, has succinctly stated his case against the State when he said, 'We are claiming that the State has negligently or improperly exercised the discretionary power vested in it in failing to mark a certain conjunction of roads . This negligence was, we claim, one of the proximate causes of very serious damages to the plaintiff's.

In seeking to establish actionable negligence based on the alleged deficient signing of the intersection, the plaintiff called on cross-examination Mr. H. B. Norckauer and Mr. W. T. Taylor, traffic engineers of the Department, and Mr. David Dabney, the traffic engineer and vice president of Palmer & Baker Engineers, Inc., the engineering firm for the causeway construction, and also offered the expert testimony of Mr. Leslie Williams, a traffic engineer of Philadelphia, Pa. By stipulation between plaintiff and defendant, it was agreed that if he was called to testify, the testimony of Mr. Mel Conners, also a traffic engineer, would be the same as that of Mr. Leslie Williams.

Mr. Norckauer, a civil engineer working in the traffic control section of the Department, testified that he, along with Mr. Taylor, also of the Department's traffic section, and Mr. Dabney, made an inspection of the intersection site for the purpose of signing the intersection in question during July, 1956. He stated that no traffic studies were made of this intersection prior to the date of the accident for the reason it was a new intersection and no count was possible; instead, the Department relied on their routine counts on Highway 190 to determine the traffic volume. He said that the expected rate of violations at an intersection is ten per cent; however, the counts at this particular intersection, subsequent to the accident, showed ninety per cent violations. He further testified that the Department anticipates the occurrence of several accidents right after a new road is opened .

It is his opinion, based on his knowledge of what had been done by the Department, that the Department has used accepted principles of traffic engineering in signing the intersection and in giving preference to Highway 190 over the...