State Farm Mut. Auto. Ins. Co. v. South Central Bell Tel. Co.

• Decision Date: 07 June 1978
• Docket Number: No. 9285,9285
• Citation: 359 So.2d 1318
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Anthony Balestra v. SOUTH CENTRAL BELL TELEPHONE COMPANY and James A. Dendy.
• Court: Court of Appeal of Louisiana — District of US

Page 1318

359 So.2d 1318

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Anthony Balestra v. SOUTH CENTRAL BELL TELEPHONE COMPANY and James A. Dendy.

No. 9285.

Court of Appeal of Louisiana,Fourth Circuit.

June 7, 1978.

Sessions, Fishman, Rosenson, Snellings & Boisfontaine, James Ryan, III, New Orleans, for plaintiffs-appellees.

Ogden & Ogden, Timothy L. McCune, New Orleans, for defendants-appellants.

Before REDMANN, LEMMON and BOUTALL, JJ.

LEMMON, Judge.

This case seeks recovery of damage to a car which veered off the highway to avoid striking defendant's parked tractor-trailer unit and ran into a manhole on the shoulder. After trial on the merits the trial court rendered judgment in favor of plaintiffs, the owner of the car and his subrogated collision insurer. The principal issue is whether defendant's employee's conduct in parking on the highway was a concurrent legal cause of the accident.

The accident occurred shortly before noon on a hazy, dry day on a divided four-lane, north-south highway. Prior to the accident plaintiff's son was driving the car in a northerly direction in the right lane at about 40 miles per hour in a 45-mile zone. To his right was a shoulder, about 12 feet wide, and a set of railroad tracks. He testified that as he proceeded around a winding curve, he did not notice the tractor-trailer unit stopped in the right lane until he was about three car lengths away, because his view was obstructed by the railroad tracks. He immediately applied his brakes, but when he saw he could not stop he veered to the right (the left lane being occupied) onto the shoulder where he struck the manhole and then the tracks.

Defendant's employees were beginning work on installation of underground cable along the shoulder of the road. The tractor-trailer involved in this incident was about 60 feet long, and on top of the flatbed trailer was a bright yellow crane. Just prior to the accident defendant's operator stopped the truck on the highway next to the manhole, intending to feed cable with the crane into the manhole. He first instructed the driver of defendant's other truck to proceed about 600 or 700 feet down the highway to the next manhole, where that second truck was to pull the cable through with a winch, and then he began to unload warning cones from his truck to place them up the highway to warn oncoming traffic. The accident occurred while he was unloading the cones.

Defendant's driver testified that at all times the flashers on his taillights on the bed of the truck were operating. He stated without explanation that it was necessary for him to park on the highway in order to perform this work, although he admitted that he could have pulled off onto the shoulder of the road until the warning cones were placed further up the highway to warn approaching traffic. He estimated that about 90 seconds elapsed between the time when he first stopped on the highway and the time that the accident occurred.

The driver of the car was clearly negligent in failing to maintain a proper...