State Farm Mutual Automobile Insurance Co. v. Yszara, 17446.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: HUTCHESON, , and BROWN and WISDOM, Circuit
• Citation: 263 F.2d 937
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. James T. YSZARA, Appellee.
• Docket Number: No. 17446.,17446.
• Decision Date: 25 February 1959

263 F.2d 937 (1959)

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant,
v.
James T. YSZARA, Appellee.

No. 17446.

United States Court of Appeals Fifth Circuit.

February 25, 1959.

263 F.2d 938

F. Carter Johnson, Jr., Porteous & Johnson, New Orleans, La., for appellant.

Joseph A. Sims, Hammond, La., for appellee.

Before HUTCHESON, Chief Judge, and BROWN and WISDOM, Circuit Judges.

HUTCHESON, Chief Judge.

Brought by plaintiff under the Louisiana Direct Action Statute LSA-R.S. 22:655 against the public liability insurer of Mrs. Baston, the suit was for damages resulting from a highway collision between a truck driven by plaintiff and a passenger car driven by defendant's insured.

As testified to by the plaintiff, his sole witness, his claim was: that as he was coming down the right side of the blacktop on Jefferson Highway in a southerly direction, going at a speed between forty and forty-five miles an hour, with about a thousand feet or better of clear highway in front of him, he looked to the side of the road; that when he turned his head back and he was right on it, fifteen or twenty feet away, he saw the car driven by Mrs. Baston coming out of the driveway "in slow motion down to the highway"; that at that time he was so close to it that he had to dodge it with the front end of the truck and, in doing so, the back wheels hit a part of the front end of the car and turned him over; and that that was the last he could remember. He also testified that he did not know whether Mrs. Baston's car was stopped or moving when it was struck.

The defense was a denial that Mrs. Baston was guilty of any negligence and a claim that the collision resulted solely by and through the negligence of plaintiff, and that if there was negligence on her part, the collision was due to his contributory negligence.

Tried to the jury, the evidence for plaintiff consisted of plaintiff's testimony in substance as above stated, while that of the defendant, Mrs. Baston, who was taking several children to school that morning and one of the children who was waiting to get into her car, was that she was not on the highway but was stopped in the driveway waiting for the truck to pass, and that the truck went off of the blacktop and onto the shoulder and struck her car.

The court deferring decision on the motion until after the verdict, the case went to the jury, and there was a verdict for plaintiff.

Defendant's motions for judgment in accordance with its motion for...