Smith v. Chadick-Hayes Co., Inc.

• Decision Date: 16 February 1932
• Docket Number: 4240
• Citation: Smith v. Chadick-Hayes Co., Inc., 139 So. 689, 19 La.App. 523 (La. App. 1932)
• Court: Court of Appeal of Louisiana
• Parties: SMITH v. CHADICK-HAYES CO., INC

139 So. 689

19 La.App. 523

SMITH v. CHADICK-HAYES CO., INC

No. 4240

Court of Appeals of Louisiana, Second Circuit, Second Division

February 16, 1932

Rehearing Refused March 16, 1932.

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

Action by M. H. Smith against Chadick-Hayes Company, Inc.

There was judgment for defendant, and plaintiff appealed.

Judgment affirmed.

Barksdale Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellant.

Thatcher Browne, Porteous & Myers, of Shreveport, attorneys for defendant, appellee.

OPINION

TALIAFERRO, J.

Plaintiff sues to recover judgment against defendants for injuries to him and his Pontiac coupe arising from a collision between his said car and the Chrysler coupe of defendants Marx Maritzky and Isadore Maritzky, while operated by the wife of the former, on the Shreveport-Minden highway, about 12 miles east of the city of Shreveport, in the forenoon of January 29, 1929. He alleges that a truck of defendant Chadick-Hayes Company, Inc., and said Chrysler coupe collided at said place and at said time, resulting in the truck running into a ditch on south side of said highway and turning over, and said Chrysler coupe remaining on said highway, completely obstructing traffic thereon; that he was driving his car behind said Chrysler coupe, and, as the collision of said truck and the coupe was so sudden and unexpected, it was impossible for him to bring his own car to a stop before running into the Chrysler car, notwithstanding he exercised due care and caution for his safety, operating his car carefully, at a lawful and reasonable rate of speed and maintaining a proper and reasonable distance between it and said Chrysler coupe.

The defendants, the three Maritzkys, residents of Claiborne parish, excepted to the jurisdiction of the court. This plea was sustained, and they passed out of the case. Only the Chadick-Hayes Company, Inc., remains as defendant to contest plaintiff's suit to recover for his injuries and damages.

The specific acts of negligence charged against defendants are: (1) That defendant drove its said truck at a fast and reckless rate of speed and on the wrong side of the highway; (2) that defendant Brody Maritzky operated said Chrysler car recklessly, losing control thereof, and running it into said truck; (3) that the drivers of said motor vehicles failed and neglected to have them under proper control as they approached each other; that each vehicle was swerved to the left toward each other and to the wrong side of the highway just prior to the collision; (4) that neither driver kept a lookout or gave any notice or warning of his or her approach.

Defendant denies all of the allegations of negligence imputed to it by plaintiff, and avers "that if plaintiff had been driving his car in a safe and proper manner, and under proper control, and had been maintaining a proper distance between his car and the car in front of him, and had maintained a proper lookout ahead, the car driven by him would not have collided with said Chrysler car." And further avers that the collision between plaintiff's car and the Chrysler car was due either to his own negligence and lack of care in operating his car, or to the combined negligence of himself and the driver of said Chrysler coupe, and not to any negligence of the operator of defendant's truck; that, if there was any negligence on part of said operator of the truck, plaintiff is barred from recovering on account of his own contributory negligence as above set out; and, in any event, he had the last clear chance to avoid the accident, and failed to do so.

The lower court rejected plaintiff's demand, and dismissed his suit, from which judgment he has appealed.

There are no written reasons of the district judge in the record, but we gather from briefs that he found and held that plaintiff's contributory negligence precluded recovery.

The present is the second suit to reach this court, growing out of the three-cornered collision involved herein; the first one being by the two Maritzkys against the Chadick-Hayes Co., Inc., reported in 12 La.App. 104, 124 So. 566, 567. In that case plaintiffs sought to hold the truck owner responsible for the damages inflicted upon their Chrysler car, and defendant reconvened for damages done to the truck, by the collision. The district court, while holding defendant's truck driver negligent, declined to give judgment to plaintiffs, for the reason that the driver of the Chrysler car (the wife of Marx Maritzky) contributed to the accident to such extent as to bar recovery. On appeal, this judgment was affirmed by this court. The facts and issues involved in that case were well stated by the district judge in a written opinion which was adopted by this court and embodied at length in its opinion referred to supra. A perusal of these reasons will impart the true facts of the collision between defendant's truck and the Chrysler coupe, but these do not cover all the facts of the collision between plaintiff's Pontiac car and the Chrysler coupe.

The testimony in the adjudicated case referred to was introduced and filed as evidence in the present case, and this testimony, together with additional evidence adduced on trial of the present case, is before us for consideration. We have given careful consideration to all of it, and now reaffirm the conclusions reached by us in the former case. However, these conclusions are not necessarily binding on us in this case; the parties plaintiff and the causes of action being different. Civ. Code, art. 2286; Ford v. Simmons, 13 La.Ann. 397; Mestier v. N. O. Ry. Co., 16 La.Ann. 354; Woodcock v. Baldwin, 110 La. 270, 34 So. 440.

It is our opinion plaintiff is not entitled to recover in this suit. We believe a decision could safely be predicated alone on his own testimony.

Plaintiff testified that he had been to Ruston, from his home in Shreveport, the morning of the accident, and was in a hurry to get back home; that he first observed the Maritzky car as it came onto the Shreveport-Minden highway, ahead of him, 4 miles west of Minden, and he trailed it, going at the rate of from 30 to 35 miles an hour, and at an average distance of 100 yards therefrom, for some 17 miles, to the place of the accident; but that immediately prior to the accident he was distant from the Maritzky car 75 or 100 feet; that both cars were traveling faster than the other cars on the highway at the time and passed many of them, in fact all of them, going west, to the scene of the collision; that, when he realized a collision was imminent between the truck and Chrysler coupe, he applied his brakes, causing the car to zigzag in the loose gravel, but was unable to stop it before running into the Maritzky car. His testimony on the vital question of his looking out and ahead to observe what was going on, immediately prior to the accident, is equivocal. He states that he realized a collision was imminent some seconds before it happened, but says that he is not certain he saw the truck and Chrysler car when they collided, though they were not over 100 feet from him and were directly in his path of travel, and again he said he did not know how far he was from the first collision when he saw it. He states that the truck was about the middle of the road, and that the Maritzky car could not pass on its side. If this were true, the collision would have been head on, whereas it is beyond dispute that the Maritzky car struck the truck at an angle at a point behind the left front wheel, raising and damaging the fender and breaking a rod connecting the steering apparatus with the front wheel, resulting in the truck's driver losing control of it and it going off of the road into the right-hand ditch and turning over, some 80 feet from the bridge. It is established that the road was 21 feet wide, and that there was clearance of 8 1/2 feet between the overhang of the truck and north edge of road, thus allowing sufficient space for the Maritzky car to pass. Defendant further states that there was considerable dust on the road, and that, after the collision of the truck and Chrysler car, it was so dense "he could not see a thing."

Plaintiff's car was so badly damaged that he did not have it repaired. The Maritzky car suffered like fate, while the motor of the truck was disconnected from its fastenings to the frame as a result of the blow from the Maritzky car. These results indicate most positively that the automobiles were moving at a rapid speed when the collisions occurred.

The Maritzky car, by the force of the impact with defendant's truck, was turned about, facing east near the middle of the road, and, while there is some dispute as to how far it was from the bridge when struck by plaintiff's car, the preponderance of the evidence fixes this distance at 30 feet.

These accidents happened on the east side of a small concrete bridge...