Prothro v. Dillahunty
| Decision Date | 07 May 1986 |
| Docket Number | No. 17822-CA,17822-CA |
| Citation | 488 So.2d 1163 |
| Parties | Earl PROTHRO, Plaintiff-Appellant, v. Thomas DILLAHUNTY and Stonewall Jackson Insurance Company, Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Goodwin, Wilson & Daye by David Paul Wilson, Shreveport, for plaintiff-appellant.
Mayer, Smith & Roberts by Caldwell Roberts, Alex S. Lyons, Shreveport, for defendants-appellees.
Before HALL, NORRIS and LINDSAY, JJ.
The plaintiff, Earl Prothro, appeals the trial court judgment finding him seventy-five percent negligent in causing the rear end collision in which his car was totally destroyed and his knee was injured. The defendants, Thomas Dillahunty and his insurer, Stonewall Jackson Insurance Company, answered the appeal contending that the trial court erred in finding Dillahunty at fault in causing the accident. Defendants also argue that if plaintiff was entitled to any recovery, the trial court did not err in the amount awarded to plaintiff for general damages. We affirm.
Prothro had been experiencing difficulty with his vehicle and on December 22, 1983 he missed work in order to have repairs made. Prothro consulted a mechanic who was unable to do the work for him on that day but advised Prothro the vacuum line should be replaced. Prothro did this work himself and drove the vehicle around during the day to determine whether the problem had been remedied. At approximately 5:30 p.m. Prothro was driving his girlfriend, Lilly Harris, and her sister, Roberta Moore, home from work. While traveling along Youree Drive in Shreveport the vehicle hesitated but did not entirely stop. Prothro continued along Youree Drive until the vehicle stalled and stopped in the curb lane near the intersection of Youree Drive and Wichita Street. Prothro put on his emergency flashers and was about to exit the vehicle when Dillahunty's vehicle ran into the rear of Prothro's vehicle. Dillahunty was following another vehicle which changed lanes to avoid Prothro's vehicle. Dillahunty did not see the Prothro vehicle in time to change lanes and the collision occurred.
Prothro's vehicle was a total loss. He suffered a minor back injury and a soft tissue injury to the left knee. Plaintiff consulted Dr. Joseph Sarpy for treatment of his injuries and quickly recovered from the back injury. The knee injury proved to be more serious. Plaintiff saw Dr. Ragan Green, an orthopedist, who performed arthroscopic surgery on the knee. Dr. Green stated plaintiff's knee showed arthritic changes complicated by the soft tissue injury. Dr. Green removed arthritic debris from plaintiff's knee and plaintiff recovered completely with no permanent disability.
Plaintiff was working two jobs at the time of the surgery and as a result missed nine days from one job and ten days from the other. Prothro was not financially able to purchase another vehicle immediately after the accident. In January, 1984, he rented a vehicle which he drove until June, 1984, incurring a bill in excess of $3,000. Plaintiff sued defendant and his insurer for property damage, loss of use of his vehicle and for personal injury.
The trial was held April 18, 1985. The parties entered into several stipulations regarding the amount of medical bills, the value of Prothro's vehicle, and wrecker and storage charges. The parties also stipulated that Dillahunty was insured by Stonewall Jackson Insurance Company and that Lilly Harris and Roberta Moore had settled their claims with the company.
At trial, the evidence showed that Prothro was traveling in the right-hand lane at the point where this accident occurred. To the right of the main road was a grassy median separating the main roadway from a service road. Defendants contend that Prothro could have pulled the vehicle onto either the median or the service road in order to remove his vehicle from the main traffic lanes.
The trial court found that both parties were negligent in causing the accident and apportioned the fault at seventy-five percent to Prothro and twenty-five percent to Dillahunty. The court found Prothro was negligent in failing to correct a known defect in the vehicle and in failing to steer off the street onto the grassy area next to the pavement when there was room to do so. The trial court also found that Dillahunty was negligent in failing to timely observe Prothro's vehicle.
In awarding damages, the trial court found that Prothro was entitled to $617.56 in property damage to the car, $80 for the wrecker fee, and $51 for storage. The trial court also found that Prothro was entitled to recovery for rental fees for loss of use of his vehicle for a period of 30 days following discovery of the loss. The trial court also found that although Prothro did not lose wages for the time missed from work, he was, nevertheless, entitled to a total sum of $678.74 as a result of being required to use sick leave time which he would not have lost had it not been for this accident.
The trial court found that plaintiff was entitled to medical fees in the amount of $345 for the services of Dr. Ragan Green, $137.16 to Schumpert Medical Center, $216 for anesthesiology, and $325 for Dr. Joseph Sarpy.
The trial court also held that the plaintiff was entitled to $4,000 in general damages and a $100 expert witness fee for Dr. Green, to be taxed as costs.
The trial court then held that all awards would be reduced by seventy-five percent and entered judgment in favor of Prothro for $2,060.12. Costs were apportioned seventy-five percent to Prothro and twenty-five percent to Dillahunty.
Prothro appealed the judgment of the trial court arguing first that the trial court was manifestly erroneous in finding that Prothro was negligent in failing to properly correct a known defect in his vehicle and in failing to steer the vehicle off the street when he experienced mechanical difficulty; second, the trial court was manifestly erroneous in finding that thirty days was a reasonable period for loss of use of Prothro's vehicle; and third, that the trial court was manifestly erroneous in finding that Prothro was entitled to only $4,000 in general damages.
Dillahunty and his insurer answered the appeal claiming the trial court erred in finding that Dillahunty was at fault in causing the accident and that if Prothro was entitled to any award for general damages, the trial court did not abuse its discretion in its award to Prothro.
The trial court found Prothro was negligent in failing to correct a known defect in his vehicle. The jurisprudence holds that when a party seeks to avoid liability for an accident by claiming the accident was caused by a mechanical defect, he has the heavy burden of proving that he had no notice of the defect and that he used ordinary care to prevent the mechanical defect. Simon v. Ford Motor Company, 282 So.2d 126 (La.1973); Shelmire v. Linton, 343 So.2d 301 (La.App. 1st Cir.1977); Daniels v. Soileau, 311 So.2d 638 (La.App. 3d Cir.1975). According to the facts of this case, Prothro had notice that the car had a mechanical difficulty causing it to stall. Prothro attempted to remedy the defect himself but was not sure his efforts were successful. In order to determine if the defect had been remedied, Prothro drove the vehicle on city streets during rush hour traffic. The finding of the trial court that Prothro was negligent in this respect was not clearly wrong and absent such a showing will not be overturned on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).
The trial court found that Prothro was traveling in the right-hand lane next to a grassy median at the time his vehicle stalled and that he was traveling at approximately 40 miles per hour. The trial court found that Prothro had sufficient power to steer his car onto the median, out of the lane of traffic, and that his failure to do so constituted negligence.
A determination of negligence is a legal question determined under the duty/risk analysis. Varnado v. Continental Insurance Company, 446 So.2d 1343 (La.App. 1st Cir.1984); Triangle Trucking Company v. Alexander, 451 So.2d 638 (La.App. 3d Cir.1984). Prothro had a duty not to impede the passage of traffic on the highway. Impeding the passage of traffic carried with it the risk of collision with following traffic. Prothro breached this duty by not removing his vehicle from the roadway when it was possible to do so. Therefore, the trial court did not err in finding him to be negligent.
Dillahunty, in his answer to this appeal, argues that the trial court erred in finding he was in any way negligent in causing this accident. He asserts that when confronted with the sudden emergency created by Prothro's stalled vehicle, he could not avoid this accident.
LSA-R.S. 32:81(A) provides:
The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and condition of the highway.
When a following vehicle collides with a preceding vehicle, the following motorist is presumed to be negligent and must exculpate himself. McAllister v. Ruffin, 451 So.2d 686 (La.App. 2d Cir.1984); Lindstrom v. Arnold, 421 So.2d 1178 (La.App. 2d Cir.1982). The exception to this rule is the sudden emergency doctrine. When the lead car negligently creates a hazard which the following car cannot avoid, the following car will not be presumed negligent. Zeno v. Breaux, 164 So.2d 666 (La.App. 3d Cir.1964), writ denied 167 So.2d 304 (La.1964).
A motorist has a duty to maintain a lookout ahead and even if an obstruction in the roadway is illegal, he must exercise care to observe and avoid it. Where a stalled car can be seen and avoided by the exercise of the appropriate degree of care, a driver is negligent in failing to see the vehicle...
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