Schexnider v. Allstate Ins. Co.

• Decision Date: 16 December 1974
• Docket Number: No. 4769,4769
• Citation: 304 So.2d 825
• Parties: Alton SCHEXNIDER et al., Plaintiffs-Appellants, v. ALLSTATE INSURANCE COMPANY et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 825

304 So.2d 825

Alton SCHEXNIDER et al., Plaintiffs-Appellants, v. ALLSTATE INSURANCE COMPANY et al., Defendants-Appellees.

No. 4769.

Court of Appeal of Louisiana, Third Circuit.

Dec. 16, 1974.

Rehearing Denied Jan. 9, 1975.

Baggett, Hawsey, McClain & Morgan, Robert E. Morgan, Lake Charles, for plaintiffs-appellants.

Hunt, Godwin, Painter & Roddy, Maurice L. Tynes, Lake Charles, Ryder & Deshotels by Alfred R. Ryder, Oberlin, for defendants-appellees.

Before HOOD, CULPEPPER and WATSON, JJ.

HOOD, Judge.

Alton Schexnider and his mother, Mrs. Olivia Schexnider, sue for damages sustained by them when a Datsun pickup truck owned by Mrs. Schexnider and being driven by Leroy J. Abshire collided with a horse owned by Orville Holman. The defendants are Holman and Allstate Insurance Company, the latter being the insurer of the driver of the pickup truck. Alton Schexnider seeks to recover from both defendants, while Mrs. Schexnider demands judgment only against Holman. Defendant Holman filed a reconventional demand and third party action seeking to recover the value of the horse from plaintiffs and Allstate.

Alton Schexnider entered into a compromise settlement with defendant Allstate, and an order of dismissal as to that defendant was issued, reserving to Schexnider all of his rights against Holman .

Judgment was rendered by the trial judge rejecting plaintiffs' demands against Holman, and condemning Allstate to pay to third party plaintiff, Holman, damages in the amount of $200.00. The original plaintiffs, Alton and Mrs. Schexnider, have appealed.

The principal issue presented is whether Holman, the owner of the horse, was negligent. If he is found to be negligent, then a determination must be made as to whether Abshire also was negligent, a decision as to the last mentioned issue being necessary solely to determine whether Abshire was a joint tort feasor and thus whether there should be a reduction in the amount of damages due plaintiffs.

The collision occurred about 4:00 P.M. on October 13, 1973, on U.S . Highway 165 in Allen Parish. Alton Schexnider and Abshire were returning from work as electricians at the Elizabeth Paper Mill at that time. They were riding in a Datsun pickup truck owned by Mrs. Olivia Schexnider and being driven by abshire. Schexnider was asleep in the truck at the time the accident occurred.

While the truck was being driven south on Highway 165, a horse owned by Holman ran across the southbound lane of traffic of the highway in front of the Abshire vehicle, and the front of the pickup truck struck the horse. As a result of that accident, Alton Schexnider sustained personal injuries, the truck was damaged and the horse was killed.

Highway 165 at the scene of the accident was a straight, two-lane, concrete highway running north and south. A railroad track ran parallel to and along the east side of the highway. An unnumbered parish road, running east and west, intersected and crossed Highway 165 at the point where the accident occurred. The parish road was blacktopped east of Highway 165. Defendant Holman's home was located less than 300 feet east of Highway 165 and south of the parish road. The railroad track ran between Holman's home and the highway. Highway 165 was the preferred thoroughfare at this intersection, there being stop signs on the parish road warning motorists on that road to stop before proceeding onto the highway.

The weather was clear, the highway was dry and visibility was good when the accident occurred. The legal speed limit on the highway in that area was 60 miles per hour.

Abshire was driving the pickup truck south at a speed of about 55 miles per hour just before the collision occurred. He testified that when he reached a point about 30 or 40 feet from the above intersection he saw Holman's horse running 'pretty fast' in a westerly direction on the parish road toward the intersection. The horse had already crossed the railroad track when Abshire first saw it. According to Abshire, when the animal reached the highway it veered to its right, or to the north, and then proceeded to run across the highway at an angle directly in front of the pickup truck . Abshire stated that he applied his brakes immediately, but that he was unable to avoid striking the horse broadside. The evidence shows that the truck skidded 11 feet before the collision occurred.

Holman's horse was a seven year old, half Appaloosa, half quarter horse, weighing about 1,000 pounds. It customarily was kept confined in a pasture, enclosed by a fence, immediately behind Holman's home. Just before this accident occurred the horse escaped from that enclosure through a gate, and it proceeded at a 'full run' through Holman's yard toward the parish road. Holman and his wife ran after the horse, attempting to head it off, but both testified that the horse outran them, reached the parish road at the point where Holman's driveway connects with that road, turned to its left and proceeded at a fast run toward the intersection of the parish road and Highway 165. Holman stated that the horse headed 'on a line right down the blacktop (parish road) and onto 165.' He testified that the distance from his driveway to the east edge of Highway 165 was 70 steps, and from his driveway to the center of the highway was 83 steps.

Albert Ray Hall was driving a pickup truck north on Highway 165 at a speed of 35 or 40 miles per hour when the accident occurred. He first saw the horse while it was on the parish road crossing the railroad track, and he stated that it was running 'full speed' toward the intersection at that time. He tried to bring his truck to a stop, since a collision between the horse and Hall's truck appeared imminent, but he was unable to do so before his vehicle reached the intersection. He was crossing the intersection when the horse arrived at that point. He stated that the horse stopped momentarily at the edge of the highway, and then turned to its right, overtook and passed the Hall pickup truck while the latter was still traveling north at a greatly reduced speed, and then turned to its left, or west, directly in front of Hall's moving vehicle and across the southbound lane of traffic into the path of the Abshire pickup truck. The collision occurred in the southbound lane of traffic while the Hall and Abshire vehicles were passing each other. Hall brought his vehicle to a stop several feet north of the point of impact shortly after the collision occurred. He testified that the horse appeared to be 'spooked,' that it stopped on the edge of the pavement for 'just a second,' thus avoiding a collision with Hall's truck, and that the horse then wheeled on his back legs, headed north, overtook Hall's moving truck and then turned to its left, running across the highway in front of Hall and into the southbound lane of traffic where the accident occurred.

Prior to the accident Holman's horse had been confined in an enclosed pasture behind the latter's home, and it had escaped from that enclosure through a gate about three feet ten inches high, and four feet wide. The gate was described by Holman as being a 'yard gate.' It was constructed of net wire stretched over a metal frame, and was equipped with a spring latch which automatically snapped into a 'keeper' or a notch when the gate was closed. The gate had been purchased and installed about 15 years before the accident occurred. The gate posts were of pine lumber. The horse had been confined in that pasture for about seven years, and prior to the date of this accident it had never escaped through the gate.

Immediately after the accident occurred, Holman found that the gate was open, that the hinges were still in tact and that the latch was not broken. He also found that the gate post to which the hinges were attached was leaning away from the latch. He tried to close the gate after the horse escaped, but discovered that it could not be latched. He thereupon straightened the gate post up and adjusted the hinges on the gate by unscrewing or extending them out from the post about an additional inch, so that the spring latch would engage in the keeper installed for that purpose. Sometime later, about a month before the trial, he found it necessary to nail two boards on the gate post to which the hinges were attached in order that he again could move or extend the hinges a greater distance from the post to allow the latch to engage properly in the notch or the keeper.

Holman reasoned, logically we think, that the horse put his head over the gate, and that the pressure of the chest of the horse against the gate caused the latch to become disengaged and the gate to open.

Louis J. Domingue, a horse trainer, was qualified as an expert on stock fences. He testified that the gate was not designed to hold livestock, and that in his opinion the latch on the gate was not sufficient to hold an animal if the animal pushes against it. He pointed out that the hinges span a distance of about five inches between the gate and the post to which the hinges are attached, that that made the gate 'wobbly,' and that the gate would give either way if you push on it a little bit. He felt that since there was no barbed wire on the gate, animals were inclined to put their heads over it and push on the gate. He stated that the gate would come open if a gate post was pushed as little as one-half inch, and that the gate would open if a horse would 'push on the gate or the post or the fence next to the post.'

J. H. Romero, a farmer who has had extensive experience in raising horses, was also qualified as an expert on stock fences. He was a neighbor of Holman and farms a part of his land. He testified that the horse involved in this accident had never escaped from Holman's pasture, and that in his opinion the gate was sufficient to keep the horse in. He conceded that a gate post could be loosened or moved if a horse pushed on it, but he did not feel that a horse would put his...