Pickett v. Travelers Ins. Co.
| Citation | 127 So.2d 547 |
| Decision Date | 06 March 1961 |
| Docket Number | No. 202,202 |
| Parties | Charlie PICKETT v. TRAVELERS INS. COMPANY. |
| Court | Court of Appeal of Louisiana (US) |
Cunningham & Cunningham, by W. Peyson Cunningham, Natchitoches, for defendant.
Gahagan & Gahagan, Natchitoches, by Russell E. Gahagan, Natchitoches, for plaintiff.
Before TATE, FRUGE and HOOD, JJ.
This is an action for damages instituted by Charlie Pickett against Travelers Insurance Company to recover for the loss of plaintiff's registered bull which was struck and killed by an automobile owned by Continental Can Company, Inc., and being driven by Lionel J. Roundtree, an employee of that company. The defendant was the property damage insurer of the vehicle which was involved in this accident. The trial court rendered judgment in favor of plaintiff for the sum of $250, and defendant has appealed from that judgment. Plaintiff has answered the appeal praying that the amount of the award be increased.
The accident occurred about 11:00 A.M., on December 23, 1959, on Louisiana Highway No. 155, in Natchitoches Parish. The highway at that point is a blacktopped, straight thoroughfare, about thirty feet wide, with very narrow shoulders. It had been raining just prior to the accident and the road was wet and slippery. The accident occurred on a fill in the highway, the roadbed being four or five feet above the level of the ground on either side of this fill. The distance from the bottom of the fill to the shoulder of the road was about 35 feet.
The highway at that point is not one on which livestock are prohibited by law from roaming at large, and at the time of the accident there were signs in that immediate area warning that stock were at large and that drivers should exercise caution. The driver of the automobile was familiar with that area and with the fact that cattle were frequently on the highway.
The only eye witness to the accident was Mr. Roundtree, the driver of the insured automobile. He testified that while driving in a westerly direction at a speed of about forty-five miles per hour, he saw two cows on the north side of the highway, and that he thereupon applied his brakes and slowed down to less than 40 miles per hour until he had safely passed them. Shortly after passing these cows, he saw plaintiff's bull from 25 to 100 feet ahead of him, on the left side of the road, at which time the animal was climbing the embankment leading up to the south shoulder of the highway. He testified that the bull then suddenly darted across the highway in front of his car, that he applied his brakes immediately and turned to his left, but that in spite of these efforts to avoid a collision the right front fender of his automobile struck the rear end of the animal, killing it almost instantly.
Roundtree's testimony as to the manner in which the bull started to cross the highway is, in part, as follows:
'Well, the first thing you do, I guess, is take your foot off of an accelerator before you apply your brakes and that is what I did and then I applied my brakes, and this bull jumped on to the highway so fast that when I finally had to apply my brakes I had to apply them in order to stop the car, and I applied my brakes just as hard as I could and still control the car on the highway, and must skidded eight or ten feet when I hit the bull.'
The evidence shows that the wheels of the automobile skidded a distance of eight or ten feet immediately prior to the time of the collision. The point of impact was near the center of the highway and the animal slid on the pavement a few feet after being struck. The automobile apparently sustained relatively minor damages, since it was driven some distance immediately after the accident and before any repairs could have been made, and according to one of plaintiff's witnesses, 'the bull wasn't tore up none.' The collision did not cause the automobile to overturn or to leave the highway and it was stopped near the point of impact immediately after the accident occurred.
Within an hour after the accident occurred, Roundtree made statements to plaintiff and to two other witnesses to the effect that the accident was caused by the 'doggone slippery weather,' and that he could have avoided striking the bull by running off the highway, but that he was afraid to do so. According to plaintiff and these two witnesses, the driver of the car at that time made no mention of the fact that the bull had darted into the highway in front of his automobile. One of the witnesses, Dude Woods, testified that a few moments after the accident occurred, he saw the insured automobile being driven in a westerly direction at a speed which he estimated to be about 45 miles per hour. The car, however, was at least 200 feet west of, or beyond, the point of impact when it was first observed by this witness. Roundtree at that time was on his way to notify plaintiff of the accident. In our opinion, therefore, the testimony of this witness does not establish either that the vehicle was being driven at an excessive rate of speed at the time the accident occurred or that the driver failed to stop briefly after the impact, as he says he did.
The trial judge concluded that the sole proximate cause of the accident was the negligence of Roundtree in driving unreasonably fast under the circumstances. That conclusion, according to the written reasons for judgment which were assigned, was based on the fact that Roundtree admitted...
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