Sonnier v. U.S. Fidelity & Guar. Co.

• Decision Date: 22 April 1955
• Docket Number: No. 4012,4012
• Citation: 79 So.2d 635
• Parties: Louis SONNIER v. U. S. FIDELITY & GUARANTY CO.
• Court: Court of Appeal of Louisiana — District of US

Page 635

79 So.2d 635

Louis SONNIER v. U. S. FIDELITY & GUARANTY CO.

No. 4012.

Court of Appeal of Louisiana, First Circuit.

April 22, 1955.

Davidson, Meaux, Onebane & Nehrbass, Lafayette, for appellant.

Dugas, Bean, Bertrand & Smith, Lafayette, for appellee.

LOTTINGER, Judge.

This is a suit for damages arising from a collision of automobiles at the intersection of St. Mary and Cherry Streets in the City of Lafayette, Louisiana. The Lower Court awarded damages for petitioner, and the defendant has taken this appeal.

The facts show that on the afternoon of April 4, 1954, at about 4:15 p. m. o'clock, the petitioner, Louis Sonnier, was driving his automobile westerly on St. Mary street in Lafayette, Louisiana. At the same time, Father Doucree, the defendant's assured, was driving his Chevrolet in a southerly direction on Cherry Street in Lafayette. It is agreed by both parties, that the weather was clear, and that St. Mary Street bears a stop sign at its intersection with Cherry Street. The testimony indicates that plaintiff had failed to stop at the stop sign controlling traffic on St. Mary Street, and had entered the intersection when the vehicle driven by Father Doucree struck petitioner's vehicle broadside. Father Doucree admitted that he was going at a speed of from 30 to 35 miles per hour immediately prior to the collision.

The petitioner and his witnesses, all of whom are either members of his family or are very close friends, claim that petitioner stopped before entering the intersection. The disinterested witnesses, on the other hand, were definite in their testimony that the petitioner did not heed the stop sign.

The Lower Court found both parties negligent, but based its judgment upon its finding that petitioner had pre-empted the intersection and was, therefore, accorded the right of way. Its findings, in this respect, are as follows:

'The evidence is clear that plaintiff was guilty of negligence in entering the intersection without stopping, in violation of the city traffic ordinance and in disregard of a stop sign placed on his street of travel pursuant to said traffic ordinance, and for failure to maintain a proper lookout for approaching vehicles. On the other hand, the defendant's assured was negligent in that by his own admission he was travelling in excess of the speed limit guessing that he was going about 35 or 40 miles per hour. Defendant's assured was on an errand of mercy and admits that he was in a hurry to reach his destination at Charity Hospital. He could not recall definitely if he applied his brakes and stated that he did not see plaintiff's car approaching from his left until it was too late. It is accordingly the finding of the Court that both parties were negligent, however, the court will further examine the question of proximate cause to determine the applicability of the so-called Doctrine of Last Clear Chance. Plaintiff pleaded pre-emption of the intersection and neither raised the question of last clear chance which is of no consequence. See Iglesias v. Campbell, La.App., 1937, 175 So. 145.

'There is no evidence of any speeding violation on the part of the plaintiff and unless his violation of the regulatory stop-sign ordinance was one of the proximate causes of the accident, it would not bar his right of recovery. The facts clearly show that plaintiff had almost reached the opposite end of the crossing when his vehicle was struck by defendant's assured.

'A review of the applicable jurisprudence of our state reveals that there are a number of cases analogous and almost identical with the situation presented in the instant matter. One of the landmark decisions is that entitled Boullion v. Bonin, La.App., 1 Cir., 1941, 2 So.2d 535, in which an intersectional accident involved two drivers, one of whom had violated the regulatory ordinance in failing to stop at a right of way street and the other who was travelling in excess of the speed limits, among other charges of negligence. The court ruled that both parties were negligent but applied tests of proximate cause and last clear chance in deciding the issues. The court opined that plaintiff was not the proximate cause of the accident through his failure to stop and failure to see defendant, but rested upon the defendant the full responsibility for the subsequent collision, saying, 2 So.2d at pages 540-541:

"We therefore conclude that whether we base our opinion on the ground that the negligence of Boullion was not a proximate cause of the accident, or on the ground that Bonin had the last clear chance to avoid it as held in the former opinion, the result is the same. As already stated, the negligence of Boullion was not active and continuous up to the moment of the accident and was not concurrent with that of Bonin, but his negligence had become inactive when the collision occurred. The negligence of Bonin was not only active and continuous up to the moment of the collision but it was the direct and proximate cause of it.

Moreover, as pointed out in our former opinion, Bonin had the last clear chance to avoid the accident but failed to avoid it.'

'See also Duke v. Malone, La.App., 1 Cir., 1952, 57 So.2d 711, in which the late Judge Hugo Dore followed the general ruling set forth in the Boullion Case, supra. See also Stewart v. Keller, La.App., 36 So.2d 893, 19 Blashfield, Cyclopedia of Automobile Law & Practice, Vol. 4, Part 2, Sec. 2801 et seq.

'In the instant case, it is clear from the evidence and testimony that plaintiff had pre-empted the intersection and that his prior negligence was passive. However, the defendant's assured could have avoided the accident and his excessive speed and failure to see plaintiff were acts of active and continuous negligence without which the accident would not have occurred. The plaintiff's prior negligence had become inactive when the collision occurred.'

We disagree with the findings of the Lower...