Rizley v. Cutrer
| Decision Date | 01 April 1957 |
| Docket Number | No. 42950,42950 |
| Citation | 232 La. 655,95 So.2d 139 |
| Parties | Levert R. RIZLEY v. R. V. CUTRER and Allstate Insurance Company. |
| Court | Louisiana Supreme Court |
T. R. Broyles, J. L. Funderburk, Jr., Leesville, Herschel Knight, Jennings, for applicants.
King, Anderson & Swift, R. W. Farrar, Jr., Lake Charles, for defendants-respondents.
At about 5:00 a.m. on March 13, 1954, an automobile being driven by R. V. Cutrer on Highway 190, just east of the town of Elton, left its proper lane of travel and careened into the north lane of the highway where it crashed headon with an oncoming vehicle being driven by plaintiff, Levert R. Rizley. Rizley and his passengers, Clarence Mershon and William F. Meade, sustained severe and painful injuries in the accident and they thereafter instituted separate actions against Cutrer and his liability insurance carrier, All State Insurance Company, which were consolidated for trial, the issues involved being substantially identical with the exception of the quantum of damages. The injured plaintiffs are soldiers and, at the time of the accident, they were heading in a westerly direction in the car driven by Rizley on their way back to Camp Polk, where they were stationed. Cutrer's automobile, with two young ladies as passengers, was approaching from the opposite direction and suddenly swerved into the north lane when Cutrer lost control of the car. The passengers in both cars were sleeping just prior to the impact and the only eye witnesses were the drivers of the cars involved.
The defense of Cutrer and his insurance company is that the accident was unavoidable, it being claimed that Cutrer's loss of control of his car was exclusively due to its running onto the earthen shoulder of the south lane of the roadway which was caused by the unexpected termination of a concrete strip bordering the highway for a distance of some 500 feet east from the town of Elton. It is said that the abrupt ending of this strip, which is two feet wide for 250 feet and then narrows to a width of one foot for another 250 feet east of Elton, presented an unusual and unforeseen hazard to Cutrer in his passage over the highway on the morning of the accident and that, when he reached the end of the strip and rolled over the earthen shoulder adjacent to the edge of the road, which was slippery and muddy due to the weather conditions (it was drizzling at the time), he unavoidably lost control of his car, being unable to keep it from slipping or skidding into the wrong lane of traffic where it collided with the oncoming automobile. Alternatively, it is pleaded that Rizley and the occupants of his car were guilty of contributory negligence barring their recovery. After a hearing in the district court, there was judgment for defendants, the judge being of the opinion that Cutrer's testimony was sufficient to exonerate him from all blame. On appeal, the Court of Appeal for the First Circuit affirmed the judgment for substantially the same reasons given by the trial judge. See Mershon v. Cutrer, 85 So.2d 639. On application of Rizley and the other plaintiffs, we granted certiorari and the case has been submitted for our decision.
Since the primary cause of the collision was Cutrer's act in driving his car into that part of the roadway reserved exclusively for traffic proceeding from the opposite direction, a mere statement of the accident makes out a prima facie case of negligence against Cutrer and, therefore, it was incumbent upon defendant to show by clear and convincing evidence that Cutrer's sudden presence in plaintiff's traffic lane was due to unexpected and unforeseen circumstances over which he had no control and that he did not in any particular contribute to the mishap. See Schick v. Jenevein, 145 La. 333, 82 So. 360; Miller v. Hayes, La.App., 29 So.2d 396 and Noland v. Liberty Mutual Ins. Co., 232 La. 569, 94 So.2d 671.
Highway 190 at and near the point of the accident is a straight two-lane thoroughfare running east and west. The paved portion of the highway is 18 feet in width and is bordered by earthen shoulders of six to eight feet, ample to accommodate parked cars. Running east from the town of Elton, the paved portion of the highway has been supplemented by concrete strips which, as heretofore stated, are two feet wide for 250 feet and then taper down to a width of one foot for another 250 feet, where they abruptly end. However, at the terminal of the strip, there is not appreciable drop onto the earthen shoulder but there exists a depression which has been caused by the repeated contact of motor traffic with the shoulder of the road.
It was dark on the morning of the accident and all vehicles were using their lights. It was raining or drizzling intermittently causing the shoulders of the highway to be muddy and insecure. In his explanation of the accident Cutrer testified that, soon after driving through the town of Kinder, or about 10 miles west of Elton, he began to encounter heavy trucks approaching from the opposite direction; that it was still dark, a drizzling rain was falling and that the headlights from the oncoming trucks interfered to some extent with his visibility; that, during the 10 miles to Elton, he glanced once at his speedometer which showed that he was travelling between 45 and 50 miles per hour; that, since the passing trucks were being driven close to the center line, he felt 'rather crowded' and that, upon reaching Elton, he noticed the strip bordering his lane, which gave him a little more room, so he moved over and drove with his right wheels on the strip. However, Cutrer relates that, when his car approached the terminal point of the strip, he did not see it because he believes that he may have been partially and temporarily blinded by headlights of an oncoming truck and he indicates that he expected that there would be a posted sign notifying motorists of the end of the strip. He stated 'When the pavement stopped at a square end, well I ran off the square end of the pavement.' Although he was not sure whether his front wheels 'feel off' the road and onto the shoulder, Cutrer says that he felt the back wheels...
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