Safety Tire Service, Inc. v. Murov

• Decision Date: 05 April 1932
• Docket Number: 4246
• Court: Court of Appeal of Louisiana — District of US
• Parties: SAFETY TIRE SERVICE, INC., v. MUROV

140 So. 879

19 La.App. 663

SAFETY TIRE SERVICE, INC., v. MUROV

No. 4246

Court of Appeals of Louisiana, Second Circuit

April 5, 1932

Rehearing Refused May 4, 1932.

Writs of Certiorari and Review Refused by Supreme Court May 23 1932.

Appeal from First Judicial District Court, Parish of Caddo. Hon Robert Roberts, Judge.

Action by Safety Tire Service, Incorporated, against Nathan Murov.

There was judgment for plaintiff and defendant appealed.

Judgment reversed and plaintiff's demands rejected.

Dickson & Denny, of Shreveport, attorneys for plaintiff, appellee.

Wise Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellant.

OPINION

DREW, J.

This is an action for damages arising out of a collision of a truck belonging to plaintiff with a truck of defendant that was parked on the roadside. The amount of damages claimed by plaintiff is $ 1,039.81, with legal interest thereon from December 19, 1930, until paid.

Plaintiff alleged that its truck, driven by its employee, was coming towards Shreveport from Benton, Louisiana; that it was night and that its driver was unable to see defendant's truck standing on the road and ran into the rear end of said truck, thereby damaging plaintiff's truck and the goods therein. It alleged the following acts of negligence on the part of defendant:

"In leaving the automobile truck with the end gate down and standing approximately in the center of the road, without lights or other warning signal which might show the presence of said truck on said highway at said time.

"In permitting said truck to be left on the highway at night, with the end gate down and extending about two and one-half feet from the rear of the bed of said truck and extending over the center of the highway, without any lights or other warning signals thereon in violation of the laws of the State of Louisiana, and with nothing to warn persons that said end gate was obstructing passage on said highway.

"In leaving said truck on said highway at night without lights or other signals or some person in attendance thereon to warn persons of the presence of said truck, and obstruction."

Defendant denied the acts of negligence alleged by plaintiff, and alleged that the proximate cause of the accident was:

"* * * the negligence of the driver of plaintiff's truck, acting within the scope of his employment and as agent of plaintiff, in driving plaintiff's said truck at a speed in excess of that provided for in Act 296 of the Acts of the State of Louisiana for the year 1928; in failing to keep a proper lookout on the road as he was driving at a high rate of speed, in failing to observe the truck of defendant in time to have avoided striking it; in driving at said high rate of speed while approaching and meeting a car proceeding in an opposite direction, with its lights shining so as to interfere with proper vision of the driver of plaintiff's truck to observe the presence of another vehicle on the road, all of which negligence bars plaintiff's recovery herein."

In the alternative, it pleaded contributory negligence, as above alleged, in bar of plaintiff's recovery.

There was judgment in the lower court in favor of plaintiff in the sum of $ 637.19, with legal interest thereon from judicial demand until paid; and from this judgment defendant prosecuted this appeal. Plaintiff has answered the appeal, praying that the judgment be increased to $ 839.81, the increase consisting of items of $ 25, for towing the truck in after the wreck, and $ 77.62, for damage to the tires on the truck as merchandise. The facts disclosed by the record are as follows:

Defendant's truck, traveling from Benton to Shreveport, broke down and could not be moved by its own power. The driver pushed it down the road a distance of about 150 feet to a point in front of a negro house, where he left it. The two front wheels of the truck were off the pavement on the right-hand side, and the right rear wheel was also off the pavement. The rear left wheel was on the pavement, causing the truck to be in an angling position. The rear end gate of the truck was down, causing it to extend straight out behind the truck, as though it were a continuation of the floor of the truck. The road was paved and approximately eighteen feet wide, and the rear end of the end gate of the truck extended to within about two feet of the center line of the pavement.

When the driver left the truck in this position to go a distance of about one mile to a store to telephone his employer, the sun was setting and, although the driver knew he could not make the trip to the store and back before dark, he failed to leave any lights burning on the truck.

Plaintiff's truck was traveling from Benton towards Shreveport at a rate of 30 to 35 miles per hour, and, when nearing the parked truck of defendant was met by a car going towards Benton. Benton is north of Shreveport. The lights from this car blinded the driver of plaintiff's truck until just about the time they passed each other, and, necessarily, the driver of plaintiff's truck could not see back of the car, which was going north, on account of the lights. The driver of the car going north and plaintiff's driver are very nearly together in their testimony as to where they passed. One says 40 feet north of the parked truck and the other says 50 feet north of it.

Plaintiff's driver testified that immediately upon getting the glare of the lights of the northbound car out of his eyes, he saw the parked truck a distance of 40 feet ahead of him and attempted to cut behind the northbound car and to the left of the parked truck. He was not successful and struck the end gate of the parked truck. The parked truck was knocked a distance of 18 or 20 feet into a ditch, and plaintiff's truck continued down the road a distance of 100 feet and turned over in a ditch on the other side of the road. The approximate weight of the parked truck was 3,500...