Smith v. Brekeen, s. 7460

• Decision Date: 12 November 1968
• Docket Number: 7461,Nos. 7460,s. 7460
• Citation: 216 So.2d 90
• Parties: Mrs. Billie E. Wood SMITH v. Lynn BREKEEN et al. Elwood SMITH v. Lynn BREKEEN et al.
• Court: Court of Appeal of Louisiana — District of US

Page 90

216 So.2d 90

Mrs. Billie E. Wood SMITH v. Lynn BREKEEN et al.

Elwood SMITH v. Lynn BREKEEN et al.

Nos. 7460, 7461.

Court of Appeal of Louisiana, First Circuit.

Nov. 12, 1968.

Rehearing Denied Dec. 16, 1968.

Robert J. Vandaworker, of Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for Lynn Brekeen, Swenson-Clyburn Contract Supply, Inc. and The Travelers Ins. Co.

Richard E. Burton, of Burton, Roberts & Ward, Baton Rouge, for Mrs . Billie E. Wood Smith.

Daniel R. Atkinson, of Dale, Owen, Richardson, Taylor & Mathews, Baton Rouge, for Hardward Mutual Casualty Co.

Cole & Claiborne, Port Allen, for Elwood Smith.

Before LANDRY, REID and SARTAIN, JJ.

REID, Judge.

On August 30th, 1965, an intersectional automobile accident occurred between an automobile operated by the defendant, Lynn Brekeen, an employee of Swenson-Clyburn Contract Supply, Inc., and an automobile owned by Mr. William Elliott and driven by Mr. Elwood Smith, in which his wife, Mrs. Billie E. Wood Smith was a guest passenger. The accident took place in Baton Rouge, Louisiana, at the intersection of Sherwood Forest Boulevard and Goodwood Avenue, when the automobile driven by Mr. Smith and traveling in a Northerly direction on Sherwood Forest Boulevard collided with the station wagon driven by Lynn Brekeen, who was traveling East across the North bound traffic lanes of Sherwood Forest Boulevard.

Suit was filed on behalf of Mr. Elwood Smith in the Nineteenth Judicial District Court, Parish of East Baton Rouge, on May 2nd, 1966, against the defendant, Lynn Brekeen, his employer Swenson-Clyburn Contract Supply, Inc., and their insurer, The Travelers Insurance Company. A similar suit was filed on behalf of Mrs. Smith on May 3rd, 1966, the sole exception being that Mrs. Smith's petition also names as defendant, The Hardware Mutual Casualty Company the insurer of Mr. William Elliott, the owner of the automobile being driven by Mr. Smith.

The cases were consolidated and tried on the merits on October 17th, 1967. After the trial on the merits, the trial judge gave oral reasons for judgment finding in favor of the plaintiffs in both cases, and against Lynn Brekeen, his employer Swenson-Clyburn Contract Supply, Inc., and its insurer, The Travelers Insurance Company. Judgment was signed accordingly on October 18th, 1967.

The defendants filed motions for new trial on November 13th, 1967, but these motions were denied. Appeals were taken on November 28th, 1967, from the final judgment rendered in these cases assigning as error:

1. The trial court erred in failing to hold that the negligence of Elwood Smith was the sole proximate cause of the accident sued upon.

2. The trial court erred in failing to hold that Elwood Smith was guilty of negligence which was a proximate cause of the accident.

3. The trial court erred in concluding that the speed of the Smith vehicle was not the proximate cause of the accident.

4. The trial court erred in its application of stopping charts.

5. The trial court erred in making any award of loss of earnings of Mrs. Smith.

6. The trial court erred in making an excessive award to Mrs. Smith for bodily injuries.

7. The trial court erred in concluding that the accident sued upon occurred while Brekeen was making a left turn.

8. The trial court erred in failing to give any weight to the admission of Mr. Smith that he was exceeding the speed limit at the place where the accident occurred.

9. The trial court erred in making an excessive award to Mr. Smith for the insignificant bodily injuries he allegedly received.

As to the question of liability, the sole question before this court is whether the trial judge committed manifest error in assessing liability to the defendant, Lynn Brekeen, and in failing to hold that the proximate cause of the accident was the negligence of Mr. Smith.

The record reflects that the defendant, Lynn Brekeen, was traveling in an Easterly direction on Goodwood Avenue and was in the process of making a lefthand turn onto Sherwood Forest Boulevard. The plaintiff, Elwood Smith, was traveling in a northerly direction on Sherwood Forest Boulevard and collided with the automobile driven by Mr. Brekeen, as it negotiated its left hand turn. There is some contradiction in the testimony of both the plaintiffs with Mr. Smith admitting to have stated to the investigating officer that he was driving thirty-five to forty miles per hour at the time of the accident. However, he and his wife both made statements to the effect that they were traveling at a normal rate of speed. The counsel for the defendant, Lynn Brekeen and its insurer, The Travelers Insurance Company have attempted to give weight to the fact that skid marks of seventy (70 ) feet in length were left by the plaintiff's automobile.

The speed of Mr. Smith's automobile notwithstanding, the trial judge held that the sole and proximate cause of the accident was the negligence of Mr. Brekeen, in executing a left turn in front of the plaintiff, Mr. Smith. It is, of course, well settled that a motorist attempting to make a lefthand turn must yield to both oncoming and overtaking traffic and must not attempt such a hazardous maneuver unless it is certain that it can be done safely and without causing undue inconvenience to the more favored...