Rossiter v. Aetna Cas. & Sur. Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: AYRES; BOLIN
• Citation: Rossiter v. Aetna Cas. & Sur. Co., 255 So.2d 103 (La. App. 1971)
• Decision Date: 16 November 1971
• Docket Number: No. 11691,11691
• Parties: Larry ROSSITER et ux., Plaintiffs-Appellants, v. AETNA CASUALTY & SURETY COMPANY Defendant-Appellee, Insured Lloyds Insurance Company, Intervenor-Appellant.

Page 103

255 So.2d 103

Larry ROSSITER et ux., Plaintiffs-Appellants, v. AETNA CASUALTY & SURETY COMPANY Defendant-Appellee Insured Lloyds Insurance Company, Intervenor-Appellant.

No. 11691.

Court of Appeal of Louisiana, Second Circuit.

Nov. 16, 1971.

Johnston, Johnston & Thornton, by James J. Thornton, Jr., Shreveport, for Larry Rossiter and Mrs. Martha J. Rossiter, plaintiffs-appellants.

Gallagher & Gallagher, by Andrew B. Gallagher, Shreveport, for Insured Lloyds Insurance Co., intervenor-appellant.

Cook, Clark, Egan, Yancey & King, by Gordon E. Rountree, Shreveport, for Aetna Casualty & Surety Co., defendant-appellee.

Before AYRES, BOLIN and PRICE, JJ.

AYRES, Judge.

This is an action in tort wherein plaintiffs, husband and wife, seek to recover damages sustained in a motor vehicle collision on February 20, 1970, at the T-intersection of Riviera Street with North Lakeshore Drive in Caddo Parish. Involved in the accident were plaintiffs' Ford Mustang and an International pickup truck owned by Piggly Wiggly Operators Warehouse, Inc., and driven by its employee Lester T. Frazier. Made defendant was Aetna Casualty & Surety Company, public liability insurer of Piggly Wiggly.

Plaintiff Mrs. Rossiter seeks to recover damages for personal injuries allegedly sustained in the accident; plaintiff Larry Rossiter seeks to recover damages sustained to the family automobile to the extent of a deductible from coverage prescribed in a collision insurance policy of Insured Lloyds Insurance Company. He also seeks the recovery of hospital and medical expenses incurred and to be incurred in the treatment of his wife's injuries. Plaintiffs' insurer intervened seeking reimbursement of the damages paid to plaintiffs under its policy as the insurer of plaintiffs' vehicle. Defendant, as the workmen's compensation insurance carrier of Piggly Wiggly, reconvened and sought to be reimbursed hospital and medical expenses incurred in the treatment of the injuries sustained by Frazier in the accident as well as compensation paid during the period of his disability.

The trial court concluded, after trial, that both Mrs. Rossiter and Frazier were guilty of negligence, and accordingly rejected not only plaintiffs' demands but those of the defendant in reconvention as well as those of the intervenor. From the judgment accordingly rendered and signed, plaintiffs and the intervenor appealed. Defendant, Aetna, answered plaintiffs' appeal and prayed that it have judgment as originally sought.

North Lakeshore Drive at the scene of the accident is a 2-lane asphalt-surfaced roadway with a broken white line along its center. There is no yellow line or other marking in the vicinity of the accident indicating a no-passing zone. North Lakeshore Drive runs in a general north-and-south course. Riviera Street, also a 2-lane asphalt-surfaced passageway, approaches from the west and forms a T-intersection with North Lakeshore Drive. The latter is the favored street. Entrance to it from Riviera is governed by a stop sign erected about 20 feet from the intersection.

Mrs. Rossiter, driver of the Mustang, was proceeding easterly on Riviera as she approached and entered the intersection at North Lakeshore Drive. Approaching the intersection from the south and, therefore, proceeding north on North Lakeshore Drive were two trucks . The first, or lead truck, was an ice delivery truck operated by Isham Burks, traveling approximately 45 m.p.h., followed by the International pickup driven by Frazier, an automobile mechanic of Piggly Wiggly who was returning from a service call to another of his employer's trucks. The Piggly Wiggly warehouse, within sight of the scene, was the destination of both trucks.

Before reaching the intersection, Frazier began a passing movement . Emerging from behind the ice truck, he entered the left, or southbound, traffic lane of the roadway and increased his speed to 55 or 60 m.p.h. This was the maximum allowable speed limit. When Frazier, alongside the front of the ice truck, began a return movement to his proper northbound lane, the Mustang operated by Mrs. Rossiter was driven from Riviera into the intersection angling south in the southbound traffic lane of North Lakeshore Drive. She thus indicated her intention to proceed south on that roadway. A head-on collision resulted. The left front of the Piggly Wiggly truck and the left front of the Mustang were the points of contact. The Piggly Wiggly truck angled to the right, crossed the northbound traffic lane in front of the ice truck and came to rest in the east roadside ditch. The Mustang came to rest with its rear on the shoulder of Riviera and its front angled southeast in the southbound lane.

Negligence charged to Frazier, driver of the Piggly Wiggly truck, consisted of a failure to maintain a proper lookout or to keep his vehicle under control, in passing another vehicle at an itnersection, in driving on the wrong side of the road, and in failing to yield the right of way to approaching traffic.

Charges of negligence directed to Mrs. Rossiter ocmprised (1) a failure to keep a proper lookout and to observe oncoming traffic on North Lakeshore Drive, and to stop and observe the stop sign at the intersection, as well as (2) a failure to ascertain that the southbound traffic lane of North Lakeshore Drive was free of oncoming traffic before she attempted a right turn into the favored roadway, and a failure to yield the right of way to oncoming traffic thereon.

Taking them in reverse order, attention will be first given to the charges of negligence directed to Mrs. Rossiter. These charges are based primarily upon her alleged violation of the provisions of the Highway Regulatory Act as contained in LSA-R.S. 32:123, the pertinent provisions of which read:

'A. Preferential right of way at an intersection may be indicated by stop signs or yield signs.

'B. Except when directed to proceed by a police officer or traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the cross walk on the near side at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right of way to all vehicles which have entered the intersection from another highway or Which are approaching so closely on said highway as to constitute an immediate hazard.' (Emphasis supplied.)

The jurisprudence of this State is in accord with and supports the above-stated statutory provisions. Thus it has been held on many occasions that a motorist who approaches a favored thoroughfare on an inferior street on which the traffic is controlled by a stop sign must not only stop in compliance with the stop sign before entering the right-of-way thoroughfare but must remain stopped until he has ascertained he can proceed with safety. He must further yield the right of way to drivers of oncoming vehicles approaching so closely on the favored roadway as to constitute a peril or hazard to the motorist on the inferior street who plans to enter the favored roadway. Henderson v. Central Mutual Insurance Company, 238 La. 250, 115 So.2d 339 (1959); Koob v. Cooperative Cab Co., 213 La. 903, 35 So.2d 849 (1948); Ballaron v. Roth, 221 So.2d 297 (La.App., 4th Cir. 1969); Aucoin v. Fidelity General Insurance Company, 219 So.2d 532 (La.App., 3d Cir. 1969--writ refused); Reynolds v. Villarrubia Taxicab Rental Company, 218 So.2d 66 (La.App., 4th Cir. 1969); Phoenix of Hartford Insurance Co. v. Llort, 219 So.2d 789 (La.App., 1st Cir. 1968); Doucette v. Primeaux, 180 So.2d 866 (La.App., 3d Cir . 1965--writ refused); Simmons v. Zeno, 168 So.2d 357 (La.App., 3d Cir. 1964).

The testimony is conflicting as to whether Mrs. Rossiter stopped in compliance with the stop sign before driving into the intersection of the favored street. She testified that she stopped. Frazier and Burks, drivers of the two trucks, testified she did not stop, but proceeded, without halting or yielding the right of way, into the itnersection. Nevertheless, the court concluded that Mrs. Rossiter did stop. Mrs. Rossiter, however, testified that before beginning her right turn into North Lakeshore Drive she looked in both directions on North Lakeshore Drive and, upon looking to her right, saw the approaching trucks at an undetermined distance away, which was about the time she proceeded from the stop sign toward the intersection. She also admitted having seen the rear truck come from behind the ice truck into the passing lane. The trial court found that:

'At almost the same instant that the Rossiter vehicle began its maneuver of traversing the twenty feet, the driver of the warehouse truck proceeded to begin his passing maneuver which required him to accelerate his speed to approximately sixty miles per hour. There is no indication in the record to show that the driver of the warehouse truck exceeded his speed limit. * * *,'

and concluded that:

'The warehouse truck had cleared the ice truck and was pulling back into his lane of traffic when the left front portion of the truck collided with the left front portion of the Mustang.'

From these facts the court determined:

'* * * That the driver of the Rossiter vehicle could have observed a passing maneuver on behalf of the warehouse truck, had she been keeping a reasonable lookout and observance of the traffic situation, in sufficient time to have avoided the impending collision. It is the Court's opinion that the negligence of the plaintiff, Mrs. Rossiter, is such as to bar her recovery for injuries which she sustained in the accident.' (Emphasis supplied.)

A driver who merely stops in obedience to a traffic sign discharges only part of the duty required of him. He is required to see, or is charged with seeing, approaching vehicles which he...