Rowe v. Travelers Ins. Co.
| Decision Date | 24 February 1969 |
| Docket Number | No. 49214,49214 |
| Citation | 219 So.2d 486,253 La. 659 |
| Parties | Olivia S. ROWE v. The TRAVELERS INSURANCE COMPANY. |
| Court | Louisiana Supreme Court |
Cormie & Morgan, Robert E. Morgan, Lake Charles, for plaintiff-defendant in reconvention, applicant.
Holt & Woodley, by Donald E. Walter, Lake Charles, for defendant-plaintiff in reconvention, respondent.
Olivia S. Rowe, the owner and occupant of an automobile parked partially on the highway at night which was struck from the rear by a truck driven by J. Lynn Coe, instituted suit against the Travelers Insurance Company, insurer of the truck. The truck's owner reconvened for its damages, and Coe intervened seeking personal injury damages. The jury which tried the case in the district court made special findings, and on these findings the trial court entered judgment dismissing all claims. On appeal the Court of Appeal, Third Circuit, found that both parties were negligent, but that Coe's negligence was not the proximate cause of the accident. It maintained the dismissal of Mrs. Rowe's claim but awarded judgment against her in favor of Travelers, Coe, and Holcoe Equipment Service, Inc., the owner of the truck. 208 So.2d 39.
We concluded in granting writs that there was possible error of law in applying the 'unexpected obstruction' rule, and counsel urged in argument a consideration of the 'assured clear distance' rule. Having granted writs, however, we must review facts as well as law, and as our observations hereafter will reflect, we find these so-called rules inapplicable in this case, which has resolved into an almost purely factual determination.
We are denied the benefit of a finding of fact by the trial judge, and there are no special findings of fact by the jury. The only findings by that jury were:
"Question Answer
----------------------------------------------------------------- ------
"1. Was J. Lynn Coe negligent and, if so, was such negligence
a proximate cause of the accident? Yes
"2. Was Olivia S. Rowe negligent and, if so, was such negligence
a proximate cause of the accident? Yes
"3. Did J. Lynn Coe have the last clear chance to avoid the accident? No
"* * *"
Since these findings by the jury are merely conclusions and not findings of fact, the Court of Appeal could not know on what facts the jury based its conclusions. Consequently that court erred in not making its own finding of fact and in basing its judgment upon premises such as '* * * it was reasonable for the jury to conclude that Mrs. Rowe could have driven her car completely off the highway * * *' and '* * * it was (not) manifestly erroneous for the jury to accept the defendant's version of the occurrence of the accident'.
On June 10, 1966, between 11:00 p.m. and midnight, Olivia S. Rowe with two passengers was travelling west on a blacktopped road, Louisiana Highway 14, when the motor of the vehicle became overheated and she had to stop the car. A fair summary of the testimony of Mrs. Rowe and her passengers, Willie Horne and Mabel Granger, follows: Mrs. Rowe had pulled her car off the highway onto the shoulder of the road as far as was reasonable and safe in the judgment of these three persons. The left rear wheel and the projection of the fender and the bumper encroached only slightly on the highway. While Mrs. Rowe kept the motor running, Horne alighted to look for water for the radiator in the ditch alongside the car, but finding none, he returned to the car. Mrs. Rowe, noticing through her rearview mirror that lights were approaching some distance away, asked Miss Granger to go behind the automobile and flag the oncoming motorist for help. By this time Mrs. Rowe had killed the motor and given the keys to Horne, who was opening the trunk of the car to get a container for water. All three witnesses testified that all of the car lights were on; both Horne and Miss Granger, who were at the rear of the car, testified that the tail lights were burning, and Horne testified in addition that the trunk light was visible. While Horne remained near the back of the car looking into the trunk, Miss Granger moved toward the oncoming light, waving her hands to attract attention and flag down the vehicle. When she was somewhere from seven to fifty feet away from the Rowe car, she realized the oncoming motorist did not see her, screamed, and dived for the ditch. Horne, apparently alerted, moved from the rear of the car, and the truck driven by Coe struck the left rear of the car, driving it across the ditch and into a fence. The truck was turned upside down and came to rest on the opposite side of the highway from the Rowe vehicle.
Coe testified that he was proceeding at 50 to 55 miles per hour west on the highway and observed nothing before him until suddenly he saw two people and at almost the same instant saw the Rowe vehicle at a distance of 15 to 30 feet in front of him. He testified that he could not avoid...
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