Plaisance v. Maryland Cas. Co.

• Decision Date: 16 November 1964
• Docket Number: No. 6192,6192
• Citation: 169 So.2d 695
• Parties: Lucien V. PLAISANCE et ux. v. MARYLAND CASUALTY COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 695

169 So.2d 695

Lucien V. PLAISANCE et ux. v. MARYLAND CASUALTY COMPANY et al.

No. 6192.

Court of Appeal of Louisiana, First Circuit.

Nov. 16, 1964.

Rehearing Denied Dec. 21, 1964.

Sessions, Fishman, Rosenson & Snallings, Loeb & Livaudais, New Orleans, for appellants.

Stanley L. Perry, Galliano, for appellees.

Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.

LANDRY, Judge.

This is an action in tort wherein plaintiffs, Mr. and Mrs. Lucien V. Plaisance, seek damages for personal injuries sustained by Mrs. Plaisance, medical expense incurred by Mr. Plaisance in the treatment of his wife's injuries and property damage to the family automobile as a result of an accident in which plaintiff's vehicle, a 1957 Pontiac Sedan, being driven by Mrs. Plaisance, was struck from the rear by a 1959 Oldsmobile owned and operated by Freddie O. Guidry, insured of defendant, Maryland Casualty Company. Also named defendant is American Casualty Company, whose insured, Forrest Adams, allegedly contributed to the accident by suddenly executing a left turn in front of the Plaisance vehicle thus precipitating an emergency requiring Mrs. Plaisance to make a sudden stop, it being conceded, however, Adams' vehicle did not collide with either the Plaisance or Guidry automobiles. The trial court rendered judgment in favor of plaintiff, Lucien V. Plaisance, in the aggregate of $1,972.21, and on behalf of Mrs. Plaisance in the sum of $9,000.00 against defendants, Maryland Casualty Company and American Casualty Company, in solido. From said adverse determination defendants, Maryland Casualty Company (sometimes hereinafter referred to as 'Maryland') and American Casualty Company (sometimes subsequently referred to herein as 'American') have appealed.

The accident in question occurred at 6:30 P.M., November 9, 1961, on Highway 1, in LaRose, Lafourche Parish. At the time of the accident it was dark, all vehicles involved had their headlights burning, the weather was fair and the roadway, a northsouth concrete, two-lane highway twenty-two feet in width, was dry. The mishap transpired in the right northbound traffic lane opposite the northern end of the premises of a gas station situated on the east side of the thoroughfare. Mrs. Plaisance, accompanied by her sixteen year old daughter, Diana Clara, was proceeding northerly along the highway in her proper lane of travel at a speed of approximately 30--35 miles per hour (well within the legal limit) and was thusly approaching the Adams vehicle traveling southerly on its correct side of the highway. As Mrs. Plaisance neared the north end of the premises of the LaRose Texaco Service Station situated to Adams' left, Adams turned left across the highway into the path of Mrs. Plaisance's oncoming vehicle. To avoid an accident Mrs. Plaisance stopped suddenly in her proper lane of travel and as she did so her vehicle was struck from the rear by the following Guidry automobile.

The learned trial court held both Adams and Guidry liable on the ground that each was guilty of negligence proximately causing the accident. Adams' negligence was asserted by plaintiffs and found by the trial court to consist of his making a left turn into the path of the oncoming Plaisance vehicle at a time when the approaching cars were so close that such a maneuver was manifestly dangerous. Guidry's negligence was asserted by appellees and adjudged by our esteemed colleague below to consist of his following plaintiff's vehicle too closely, not having his automobile under control and failing to stop and thereby avoid striking a vehicle stationary upon the highway.

On appeal defendant American seeks reversal of the judgment against it on the ground its insured, Adams, was free of negligence in that he turned left into the service station when Mrs. Plaisance's vehicle was at least 200 feet distant, consequently it was safe for him to turn and his action in this regard created no emergency. It is further contended by American that Mrs. Plaisance was negligent in that she stopped unnecessarily, that the left turn of the Adams car in no way endangered Mrs. Plaisance and that her careless stopping was the cause of the accident. Alternatively, Mrs. Plaisance is alleged to have been contributorily negligent in the respects mentioned.

Defendant Maryland denies any negligence on the part of its assured, Guidry, and maintains the accident occurred because of the negligence of Adams and Mrs. Plaisance. On appeal, however, counsel for Maryland assigns as error the failure of the trial court to hold that the emergency created by Adams' sudden left turn created an emergency for Guidry as well as Mrs. Plaisance, therefore, Guidry should be exonerated from liability and American held solely liable herein.

Mrs. Plaisance and her guest-passenger daughter in substance testified Adams made a sudden, unsignalled left turn across the path of the Plaisance vehicle when Adams was so near as to require an emergency stop by the Plaisance car in order to avoid a collision. Both said witnesses stated that Adams was so near when he commenced his turn that the rear end of his vehicle passed within three to four feet of the Plaisance car as Adams' automobile left the highway and entered the north end of the service station premises. That the left turning Adams automobile required plaintiff to stop to avoid an accident is corroborated by Guidry who testified plaintiff missed striking the Adams vehicle by a distance of only 10 to 15 feet. Moreover, Guidry testified that following the accident he went into the service station and asked Adams why he turned directly into the path of the Plaisance vehicle and Adams replied with a shrug of his shoulders.

Adams and his guest passenger, Jesse Bourg, in essence testified Adams was proceeding southerly in his proper lane of travel at a speed of approximately 30--35 miles per hour. When Adams made his left turn the oncoming Plaisance vehicle was an estimated 400--600 feet distant. The left turn by Adams in no way interfered with the progress of plaintiff's automobile and after clearing the highway, Adams pulled up at the center pump of the service station and was in the act of getting out of his car when the collision occurred.

Considering first the alleged negligence of Adams, the law of this state requires that a left turning motorist shall first ascertain that there is no approaching traffic, vehicular or pedestrian, and shall not attempt such maneuver unless the way is clear. LSA-R.S. 32:235(A).

On innumerable occasions the appellate courts of this state have held that a driver making a left turn must first ascertain he may do so safely which means he must first determine that there is no traffic, vehicular or pedestrian, approaching from either direction which will be unduly delayed and such driver shall yield the right of way to such approaching traffic and shall not attempt such a maneuver unless the way is clear. One of the many cases so holding is Washington Fire and Marine Ins. Co. v. Firemen's Ins. Co., 232 La . 379, 94 So.2d 295.

It has also been pronounced on many occasions that a left turn is one of the most dangerous maneuvers a motorist may execute and that in doing so great caution should be exercised. See, for example, Barnes v. Spikes, La.App., 148 So.2d 303, and cases therein cited.

We believe, as did our learned brother below, the evidence preponderates in favor of the conclusion that Adams effected his left turn at a time when the oncoming Plaisance vehicle was so close as to make such a maneuver not only unwise, but also dangerous. There would certainly have been no reason for Mrs. Plaisance to make an emergency stop on the public highway if the left turn by Adams was made when the approaching vehicles were at least 400 feet apart as testified by Adams and Bourg. The versions of the incident related by Mrs. Plaisance, her daughter and defendant Guidry appear most plausible, all testifying in effect that the emergency stop by Mrs. Plaisance narrowly averted a collision between the Adams and Plaisance automobiles.

Accordingly, we conclude our esteemed colleague of the trial court correctly held that Adams' left turn was made at a time when the way was not free and clear of oncoming traffic and therefore amounted to negligence which constituted a proximate cause of the ensuing collision between the Plaisance and Guidry vehicles.

Adjudging now the alleged negligence of Maryland's insured, Guidry, we note the principal contention of Maryland is that if Mrs. Plaisance was confronted with an emergency by the negligent left turning Adams vehicle, Guidry, in turn was faced with an impasse not of his own making consequently he is not held to that degree of care ordinarily required of a motorist and is only liable for failure to exercise such care as would have been exhibited by an ordinarily reasonable and prudent driver under the circumstances. On this premise it is contended Guidry did everything within his power to avoid an accident by applying his brakes but because of the sudden and unexpected stop by Mrs. Plaisance he was nevertheless unable to avoid striking her vehicle.

Guidry's testimony reflects he was traveling approximately 100 feet behind the Plaisance vehicle at a speed estimated at 30--35 miles per hour. He observed Adams' left turn across the path of Mrs . Plaisance's automobile and noted the flash of Mrs. Plaisance's brake lights when he, Guidry, was approximately 35--40 feet to the rear of the former's automobile. When asked if he applied his brakes upon seeing Mrs. Plaisance's brake lights go on, he replied: 'Not right off. I had a little time before I could put mine on. I put mine on, but I came into her anyway.' Tr. P. 92. When queried further regarding precisely what he did upon seeing the brake lights of the forward car flash their warning signal, he answered: 'I put myself in a position to put my brakes on. At that time I didn't know she was dead...