State Farm Mut. Auto. Ins. Co. v. Hoerner
| Decision Date | 02 November 1982 |
| Docket Number | No. 12059,12059 |
| Citation | 426 So.2d 205 |
| Parties | STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Floyd Smith v. Harry HOERNER, George Bowie, Caterina Summers, Scotty Tubbs and Gail Jenkins. |
| Court | Court of Appeal of Louisiana — District of US |
Jackson & Stovall, John J. Jackson, III, New Orleans, for plaintiff-appellant.
Drury & Lozes, Felicien P. Lozes, New Orleans, for defendants-appellees.
Before GULOTTA, GARRISON and BARRY, JJ.
This is an appeal from a judgment of the district court rendered in accordance with a jury verdict dismissing all claims resulting from a multi-vehicle collision which occurred on January 3, 1978. From that judgment, which we affirm, Dr. Harry Hoerner perfected this appeal.
The collision occurred on a clear day on Interstate 610 near the Interstate 10 junction. All vehicles were proceeding in the same direction. A disabled Toyota was parked in the emergency lane of said highway and its driver flagged vehicle # 1, a wrecker driven by George Bowie. The wrecker apparently had stopped and was proceeding to back up to assist the Toyota when vehicle # 2, driven by Dr. Hoerner, came to a squealing stop behind the wrecker. There exists contradictory testimony as to the exact location of the vehicles prior to the collision. Thereafter, vehicle # 2 was rear ended by vehicle # 3, which was driven by Caterina Summers. Vehicle # 3 was then involved in a collision with vehicles # 4, # 5 and # 6. Vehicle # 4 was driven by Floyd Smith. Claims by the drivers of vehicles # 5 and # 6 have been settled.
The instant case was tried before a jury which, in answer to special interrogatories, determined the following:
(1) that Dr. Hoerner was negligent and that his negligence was a cause of the accident;
(2) that Caterina Summers was negligent and that her negligence was a cause of the accident; and
(3) that George Bowie was not negligent.
The standard of appellate review of facts is provided for in La. Constitution of 1974, Art. 5 § 10(B):
"Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts."
As an aid to the exercise of the appellate function of a review of the facts, the Supreme Court in Davis v. Owens, 368 So.2d 1052 (La.1979) reiterated the following:
"In reviewing the questions of fact and conclusions of fact involved in this suit for damages, the Court of Appeal is mandated to leave undisturbed factual findings of the trial court based upon evidence which furnishes a reasonable factual basis for those findings, unless it finds manifest error. 'Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.' Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973). If, however, the appellate court concludes that the trial court's factual findings are clearly wrong, the mere fact that some record evidence appears which would furnish a reasonable factual basis for the contested findings does not require affirmance. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).
With these principles in mind, we proceed to review the facts and circumstances in the instant case.
The focal point of this factual dispute is the exact location of the vehicles prior to the collision. There exists inconsistent testimony as to this factual determination.
According to the testimony of George Bowie (vehicle # 1), after he saw the disabled car, he proceeded to put on his emergency flashers, slow down and stop 4 to 5 feet before the end of the emergency lane, leaving his left front tire on the emergency lane line and his left fender over said line into the right travel lane. After stopping, he put the wrecker in reverse while looking into his rear view mirror, and saw Dr. Hoerner come to a squealing stop behind him and to the left of the wrecker. More specifically, Dr. Hoerner's right front fender was just inside the wrecker's left bumper. Bowie further testified that Dr. Hoerner would have had room to pass him without having to change lanes.
In contrast, Dr. Hoerner stated that he was traveling 50 miles per hour in the right lane when he sighted the disabled Toyota and the wrecker. At the time of sighting, the two vehicles were approximately 1/2 mile ahead of Hoerner and in the right travel lane. In addition, he testified that the wrecker came to a stop in the right travel lane and appeared to be preparing to back up to assist the disabled car when Hoerner came to a squealing stop several feet behind the wrecker. Hoerner stated his vehicle stopped totally within the right travel lane. Hoerner further stated he checked his mirror prior to stopping in order to determine if he had traffic clearance to go around the wrecker. Thereafter Hoerner's vehicle was rear ended by vehicle # 3 driven by Caterina Summers.
Further contradictory testimony was illicited from Caterina Summers who testified that she was traveling 40 miles per hour in the left lane. She was approximately 50 feet away when she saw Dr. Hoerner try to merge into her lane. She stated that she put on her brakes and slid into his left rear end. After spinning clockwise, her vehicle was involved in three other collisions. She stated that both the wrecker and Dr. Hoerner's vehicle were in the right travel lane; however, the tire of the Hoerner vehicle was in her lane.
Floyd Smith, driver of vehicle # 4, testified that he observed both the wrecker and Dr. Hoerner's vehicle stopped partially in the emergency lane and partially in the right lane. Thereafter he witnessed Caterina Summers' vehicle rear end Dr. Hoerner's vehicle. He further stated that Summers took no evasive action.
George Bowie, Dr. Hoerner and Caterina Summers were each given traffic citations. It is well established that under Louisiana law the violation of a traffic ordinance is negligence per se but this presumption is rebuttable. For such negligence to bar recovery it must have been a proximate cause of the resulting collision.
In Laird v. State Farm Insurance Co., 290 So.2d 343, 347 (La.App. 4th Cir.1974); rehearing denied 1974; writ refused 1974, this court stated:
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