Piggly-Wiggly Operators' Warehouse, Inc. v. Commercial Union Ins. Co. of New York

• Decision Date: 17 March 1965
• Docket Number: No. 10352,PIGGLY-WIGGLY,10352
• Citation: 174 So.2d 207
• Parties: OPERATORS' WAREHOUSE, INC., Plaintiff-Appellant, v. COMMERCIAL UNION INSURANCE COMPANY OF NEW YORK, Defendant-Appellee .
• Court: Court of Appeal of Louisiana — District of US

Page 207

174 So.2d 207

PIGGLY-WIGGLY OPERATORS' WAREHOUSE, INC., Plaintiff-Appellant, v. COMMERCIAL UNION INSURANCE COMPANY OF NEW YORK, Defendant-Appellee .

No. 10352.

Court of Appeal of Louisiana, Second Circuit.

March 17, 1965.

Rehearing Denied April 28, 1965.

Cook, Clark, Egan, Yancey & King, Shreveport, for appellant.

Mayer & Smith, Shreveport, for appellee.

Before GLADNEY, AYRES and BOLIN, JJ.

AYRES, Judge.

Plaintiff, by this action, seeks to recover property damage sustained in a motor vehicle collision occurring about 3:00 o'clock in the morning of May 21, 1963, on U.S. Highway 71, one mile south of Hosston, Louisiana. Involved were plaintiff's tractor-trailer combination and defendant's assured's truck, normally used as the tractor portion of a unit in transporting house trailers.

Negligence charged to S. R. Bennett, defendant's driver, consisted of stopping his vehicle partially on a main-traveled portion of the highway, at night, in such a manner as to obstruct traffic, and in failing to properly set out flares, reflectors, or other warning devices or signals. Countercharges of negligence allegedly constituting the proximate or, in the alternative, a contributing cause of the accident were directed by defendant to plaintiff's driver, George W. Taylor. These consisted of an alleged failure to maintain a proper lookout or to observe the reflectors placed on the highway or the lights and reflectors on the rear of defendant's truck. Plaintiff's driver was additionally charged with excessive speed and failure to maintain proper control of his vehicle.

Written reasons for judgment were not assigned; nor does the record otherwise disclose the basis for the conclusions reached by the trial court. Plaintiff's demands were rejected and it has appealed.

Only factual issues are involved on this appeal, and these relate primarily to the question of liability and, more specifically, to the question of through whose fault the accident occurred. Therefore, a re sume of the facts is deemed essential to a discussion and resolution of the respective contentions of the parties.

Defendant's truck, at the time of the accident, because of its disabled condition, was parked partially on the right-hand shoulder of the road, its left rear extending over the edge of the pavement into the roadway. Plaintiff's heavily loaded vehicle, also proceeding in a northerly direction, struck the left rear of defendant's truck, knocking it forward across the highway right of way and against a railroad embankment paralleling the highway. Plaintiff's driver lost control of his vehicle, which continued some 245 feet and, after leaving the pavement and taking to the right of way, struck and broke a telephone pole and turned over.

Bennett was returning to Texarkana from Gonzales, Louisiana, where he had delivered a house trailer. After passing through Shreveport, some malfunction developed in the operation of his vehicle, manifesting itself as a 'clicking' noise in the motor accompanied by a loss of power. Twice he stopped, after driving his vehicle to the shoulder of the road, but each time he decided he could possibly continue to his base of operations. However, on proceeding some four or five miles after making the second stop, the motor continuing to give trouble, he endeavored again to drive onto the shoulder of the highway but was prevented from completely doing so because of the complete failure of his motor and the presence of a culvert-warning signpost to his right on the shoulder of the highway. When the truck finally came to a stop, its left rear end extended across the edge of the pavement. Bennett attempted, through the use of the battery-powered starter motor, to move the vehicle completely off the highway, but the power was insufficient to drive the left rear wheels over and across the concrete curb.

Bennett promptly placed three reflectors on the highway--one opposite the extended end of the truck and the other two at distances estimated at 10--15 steps and 25--30 steps, respectively, to the rear of the truck. He remained with his truck for a time estimated at an hour-and-a-half to two hours. During this interval, two or three cars passed without stopping.

Finally, a Volkswagen stopped; the driver offered aid and Bennett secured passage to Texarkana to obtain assistance from fellow employees. With the reflectors stationed as aforesaid, and all lights, other than the headlights, burning (there were seven lights and four reflectors on the rear of the truck), Bennett left the scene about 2:00 o'clock in the morning. The accident occurred about an hour later. He, with assistants, returned to the scene between 4:00 and 5:00 o'clock and discovered that an accident had, in the meantime, occurred.

There were no eyewitnesses to the accident other than Taylor, operator of plaintiff's truck. His testimony is to the effect that he was driving 48 m.p.h. and was watching a fast-moving oncoming vehicle with bright lights which he had observed for a considerable distance; that, on meeting this vehicle, he was momentarily blinded and that, when he regained his vision, he was within 15--20 feet of defendant's truck when he saw it for the first time. In an effort to avoid a collision, he testified, he swerved his vehicle to the left, but he, nevertheless, struck the left rear of the parked truck with the right front of his own vehicle.

Plaintiff's cause of action is predicated upon the provisions of the Highway Regulatory Act, LSA-R.S. 32:141, which prohibits the parking of a vehicle upon a maintraveled portion of a highway when it is practicable to otherwise park it. Excepted from this provision of the statute is a disabled vehicle which may be temporarily parked on a main-traveled portion of a highway, conditioned on its removal as soon as possible. Pending removal of such a vehicle, the motorist is charged with the responsibility of protecting traffic.

Plaintiff also relies upon the provisions of the statute, LSA-R.S. 32:368, which requires that when a vehicle is parked on a traveled portion of a highway, flares or reflectors shall be placed and maintained as a protection to traffic, one to be placed beside the disabled vehicle, another to its rear, and still another in front at a distance of approximately 100 feet from the vehicle itself.

There can be no question that defendant's vehicle was disabled and could not be driven farther off the highway under its own power. Bennett so testified, and an inspection of the vehicle, subsequently made, conclusively established that fact.

We find no substantial basis for the contention that defendant's driver failed in his responsibility to protect traffic. The reflectors may or may not have been placed at the precise distances from the truck as the statute requires. The exact measurements were never established; only estimates were made. If there was a failure in this regard it was insignificant. In addition to the reflectors set out on the highway, there were, as heretofore stated, seven lights and four reflectors on the rear of the truck. When Bennett returned to the scene of the accident, the seven lights were burning. Three of the reflectors were in good condition; one had been damaged in the accident.

Although the aforesaid provisions of the Highway Regulatory Act are safety measures and designed to protect life and property on the highways, and although their violation has been held to constitute negligence per se, such negligence is actionable only if it is a legal cause of the accident. Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Johnson v. Lowrey, 70 So.2d 212, La.App., 2d Cir. 1954; Cone v. Smith, 76 So.2d 46, La.App., 2d Cir. 1954 (cert. denied); Call v. Huffman, 163 So.2d 397, La.App., 2d Cir. 1964 (writ refused).

In determining whether plaintiff is negligent in failing to observe a stationary vehicle obstructing the highway, no hard and fast rule can be laid down, but the surrounding facts and circumstances bearing on the particular case must necessarily be considered. Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377 (1940); Hemel v. United States Fidelity &amp Guaranty Co., 31 So.2d 38, La.App., Orleans 1947. The duty to use reasonable care for the safety of others places the operator of a motor vehicle under a continuing duty to keep a proper lookout for other vehicles which may be properly parked along the road. Therefore, although it is the duty of a motorist to have his vehicle under such control that he can bring it to a stop within the range of his vision, the standard to be applied in determining whether a motorist is guilty of negligence is the standard to be exercised by reasonably prudent motorists under...