Rodriguez v. Trebitz

• Decision Date: 22 April 1974
• Docket Number: No. 9687,9687
• Citation: 304 So.2d 396
• Parties: Gustavo A. RODRIGUEZ, Individually, as Dative Tutor of Orlando G. Rodriguez, and as Administrator of the Successions of Eduardo F. Rodriguez, et al. v. Albert R. TREBITZ et al.
• Court: Court of Appeal of Louisiana — District of US

Page 396

304 So.2d 396

Gustavo A. RODRIGUEZ, Individually, as Dative Tutor of Orlando G. Rodriguez, and as Administrator of the Successions of Eduardo F. Rodriguez, et al. v. Albert R. TREBITZ et al.

No. 9687.

Court of Appeal of Louisiana, First Circuit.

April 22, 1974.

Rehearing Denied May 28, 1974.

Walker P. Macmurdo, Baton Rouge, for plaintiff-appellants.

Carlos G. Spaht, Baton Rouge, John P. Everett, Jr., Baton Rouge, for plaintiffs-appellees-appellants.

Daniel R. Atkinson, Baton Rouge, for defendant-appellee-appellant.

Before: LOTTINGER, BLANCHE and CRAIN, JJ.

CRAIN, Judge.

The matter before us arises from an automobile accident which occurred on February 22, 1971, at approximately 7:30 p.m. involving vehicles driven by Dr. Eduardo F. Rodriguez and Albert Trebitz. In the accident Dr. Rodriguez's wife, Martha B. Rodriguez was killed immediately and Dr. Eduardo Rodriguez succumbed from injuries sustained in the accident several weeks therafter. This suit is brought by Gustavo A. Rodriguez, a major son of Dr. and Mrs. Rodriguez, both individually, as dative tutor of Orlando G. Rodriguez, a minor son of Dr. and Mrs. Rodriguez, and administrator of the successions of Dr. and Mrs. Rodriguez, and also by Eduardo Rodriguez, Jr., the other major son of the Rodriguezs' against Albert R. Trebitz, Arthur Dooley and Son of Louisiana, Inc., Trebitz's employer, and Royal Indemnity Company, the liability insurer of Arthur Dooley and Son of .louisiana, Inc. for the wrongful death and personal injuries of Dr. and Mrs. Rodriguez. The defendants answered the plaintiff's suit and also filed a third party demand against Gustavo A. Rodriguez as administrator of the succession of Eduardo F. Rodriguez, and the liability insurer of Eduardo F. Rodriguez, Allstate Insurance Company for indemnity and contribution in the event of any liability on part of the defendants. The matter was tried before a jury and a verdict was rendered holding Albert Trebitz and Dr. Rodriguez both guilty of negligence proximately causing the accident and the resulting injuries, and awarding the plaintiffs damages for the wrongful death of their mother, Martha B. Rodriguez. Judgment was also granted in favor of third party plaintiffs against the succession of Eduardo Rodriguez and its insurer, Allstate, for one-half of the amount awarded plaintiffs as contribution. From that decision this appeal has been taken by plaintiffs and defendants.

Plaintiff-appellants contend that the accident was proximately caused by the negligence of Trebitz and that Dr. Rodriguez was not guilty of any negligence whatsoever. They argue further that for this reason they are entitled to recover for the wrongful death of Dr. Rodriguez and for damages for his pain and suffering from injuries sustained in the accident during the twenty-one days he lived subsequent thereto.

Defendant-appellant Trebitz contends that he was not guilty of any negligence proximately causing the accident and therefore should not be cast in judgment.

Third party defendant-appellants contend that Dr. Rodriguez was not guilty of any negligence proximately causing the accident and therefore they should not be cast in judgment and compelled to contribute in accord with the third party demand against them.

The accident in question happened on U.S. Highway 61, a four-lane highway approximately one quarter of a mile from the intersection of Louisiana Highway 22 and U.S. Highway 61 within the limits of the town of Sorrento, Louisiana. Trebitz testified that he was proceeding northerly in the inside lane of traffic on U.S. Highway 61 and that as he approached the traffic light in the town of Sorrento he began to slow his vehicle down since the light was red. He stated that as he approached the light there was a line of traffic stopped at the light in the outer lane of U.S. Highway 61. He slowed his speed to approximately 40 miles an hour when the light changed to green, and he proceeded on through the intersection. He was in the course of passing the line of traffic moving in the right hand lane when the accident occurred.

Trebitz testified that he was alongside a large sized tractor-trailer rig on a dimly lighted section of the highway approximately sixteen hundred feet past the aforementioned intersection when suddenly Dr. Rodriguez, in his 1969 Ford automobile, darted into his lane of traffic from in front of the tractor-trailer truck. Trebitz was allegedly driving around fifty miles an hour at that point and the traffic in the congested lane was proceeding at approximately 30 miles per hour. He further testified that Dr. Rodriguez's car had no tail-lights burning and he did not observe the vehicle until he saw light reflected from its roof. By that time he was unable to stop and avoid a collision with the rear end of Dr. Rodriguez's vehicle. He related that he collided with the rear end of Dr. Rodriguez's vehicle and that vehicle lurched forward and crashed into a utility pole on the east side of the highway approximately 400 feet from the original point of impact.

Dr. Rodriguez's deposition was not taken prior to his death and certain testimony by others regarding his statements prior to his death were excluded as hearsay by the trial court. There were no other eyewitnesses to the accident produced at the trial.

In an effort to prove how the accident occurred, the plaintiffs called two accident reconstruction experts, Dr. Leonard Cardwell Adams, head of the electrical engineering department at Louisiana State University and Dr. Owen K. Dart, an expert automobile accident consultant. Dr. Adams testified primarily regarding his opinion that at the time of the impact between the Trebitzs' car and the Rodriguezs' car, the tail-lights on the Rodriguez car were burning contrary to the testimony given by Trebitz. Even though he agrees that at the time the bulb was broken, the filaments inside were cold since they did not burn up, he contends that the filaments were so distorted they must have been hot when first impacted. He thus concludes that the breaking of the bulb must have occurred after the filaments were distorted by the first impact, probably on collision of the vehicle with the utility pole.

Dr. Dart's testimony consisted of his opinion that Trebitz could have avoided the collision if he would have taken reasonable steps to do so. He based his findings on the period of time taken for one vehicle to change lanes of traffic and the relative speed of the vehicles and the distance between the vehicles when the maneuver was undertaken as determined by the testimony of Trebitz and other physical evidence at the scene of the accident.

To contradict this expert testimony, defendant-appellants countered with two experts of their own, Alvin Doyle and William H. Tonn, Jr., both of whom were recognized as experts in automobile accident reconstruction. These experts contradicted the conclusions reached by plaintiff's experts regarding the tail-lights and also the avoidability of the collision after the lane change by Rodriguez.

The investigating officers testified regarding physical evidence they found at the scene of the accident. They stated that there were 18 feet of skid marks left by the Trebitz vehicle, but were unable to determine whether these skid marks were left prior to or after the collision.

The jury after considering all the evidence including the elaborate theories of the experts who testified, determined that Trebitz and Rodriguez were both negligent in causing the accident and that the negligence of both proximately caused the accident.

The plaintiff-appellants first contend that since their only eyewitness to the accident, Dr. Rodriguez, passed away soon after the accident, they should be able to introduce into evidence certain statements made by him to others regarding the manner in which the accident occurred. This evidence was excluded as hearsay by the trial court. We hold that the trial court was correct. The jurisprudential rule is well settled that hearsay statements by a deceased person are not admissible unless they are part of the res gestae, and consequently an exception to the hearsay rule. Micheli v. Toye Brothers Yellow Cab Company, 174 So.2d 168 (La.App.4th Cir. 1965). The statements offered in this case were made well after the accident occurred and we find no grounds to admit the statements into evidence as 'res gestae'.

The other assertion made by the appellants is that Dr. Rodriguez's statement should be admitted as containing independently relevant facts not constituting hearsay. This argument is not convincing. The sole relevancy of the statements derives from the truthfulness of their contents, and not the mere fact of their utterance. Therefore the statement is hearsay and inadmissible unless falling under an exception to the hearsay rule which it does not. The trial court was therefore correct in refusing to admit the...