Thibodeaux v. Jack's Cookie Corp.

• Decision Date: 01 December 1964
• Docket Number: No. 1301,1301
• Citation: 169 So.2d 918
• Parties: Elda THIBODEAUX, Individually and as Tutrix of the Minor, Alzenia Thibodeaux and Herman Gallien, Plaintiffs and Appellants, v. JACK'S COOKIE CORPORATION and Liberty Mutual Insurance Company, Defendants and Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 918

169 So.2d 918

Elda THIBODEAUX, Individually and as Tutrix of the Minor, Alzenia Thibodeaux and Herman Gallien, Plaintiffs and Appellants, v. JACK'S COOKIE CORPORATION and Liberty Mutual Insurance

Company, Defendants and Appellees.

No. 1301.

Court of Appeal of Louisiana, Third Circuit.

Dec. 1, 1964.

Rehearings Denied Jan. 5, 1965.

Writ Refused Feb. 23, 1965.

Mouser & Mouser, by Edward M. Mouser, Kinder, and Vinson M. Mouser, Columbia, for plaintiffs-appellants.

Hall, Raggio & Farrar, by R. W. Farrar, Jr., Lake Charles, for defendants-appellees.

Before FRUGE , SAVOY and HOOD, JJ.

HOOD, Judge.

This action was instituted by Elda Thibodeaux, individually and in behalf of her minor daughter, Alzenia Thibodeaux, and by Herman Gallien, to recover damages alleged to have been sustained by plaintiffs as a result of a motor vehicle collision. One of the vehicles involved in the collision was an automobile owned and being operated by Elda Thibodeaux, and the other was a large truck-trailer combination, owned by Jack's Cookie Corporation and being driven by its employee, Oscar L. McKlemurry. The suit was instituted against Jack's Cookie Corporation and its liability insurer, Liberty Mutual Insurance Company.

After trial on the merits, judgment was rendered in favor of defendants, rejecting plaintiffs' demands. Plaintiffs have appealed .

The accident occurred about 4:30 a.m. on March 5, 1963, on U.S. Highway 190, in Allen Parish, Louisiana. The highway at that point runs east and west, and it is a hard-surfaced, level, straight, heavily-travelled thoroughfare, with eleven-foot shoulders on each side of the slab.

The evidence shows that at about 1:00 a.m. on the day the accident occurred, Elda Thibodeaux left Opelousas, Louisiana, in her 1951 model Pontiac automobile to drive in a westerly direction to her home in Beaumont, Texas. The only other occupants of the car were her 21-year-old nephew, Herman Gallien, and her 11-year-old laughter, Alzenia Thibodeaux. It was raining when they left Opelousas and they encountered rain all along the trip. They stopped in or near Basile, Louisiana, to get something to eat, and when they attempted to leave the restaurant they found that they were unable to start the motor of the car. Their automobile was then pushed across the street to a service station, and after the attendant wiped of the wires around the motor they succeeded in starting the car and they continued on their trip to Beaumont.

After leaving the service station, the motor ran well enough for them to travel at a speed of about 40 to 45 m.p.h. for a number of miles, but when they reached a point on U.S. Highway 190, near Reeves, Louisiana, the motor began missing to such an extent that the speed of the car was reduced to between 10 and 15 m.p.h. Finally, the motor stopped completely and plaintiffs' car came to rest on the highway, facing in a westerly direction, with the two right wheels of the automobile a few inches north of the north edge of the hard-surfaced portion of the highway, and with the remainder of the car on the pavement. In that position, the parked automobile blocked a substantial portion of the westbound lane of traffic on that highway.

After the car stopped, Elda Thibodeaux attempted to start the motor for about five minutes, but without success. She then got out of the automobile for the purpose of flagging down a passing motorist for help. After she had been out of the car for a few minutes, Gallien tried for about three minutes to start it, also without success. After the car had been parked on the highway in that position for approximately fifteen minutes, defendant's large cab-over-engine truck-trailer combination, being driven by McKlemurry, approached from the east, travelling in a westerly direction on the same highway, and it collided with the rear-end of the automobile. As a result of the collision, Elda Thibodeaux and the two occupants of the car were injured.

No effort was made by Elda Thibodeaux or by either of the other two occupants of the car to push or to move the Thibodeaux automobile off the paved portion of the highway after it stopped there. Gallien and plaintiff's daughter did not get out of the car at all before the accident occurred, and Elda Thibodeaux stated that she did not try to push it because she did not think she could. Gallien wanted to get out of the car and he suggested that he do so, but Elda Thibodeaux told him to stay in the automobile because 'they helps a woman quicker.'

The driver of the truck testified that shortly before he reached the stalled car he was partially blinded by the lights of a vehicle approaching from the west, that he dimmed his lights as he met this vehicle, that immediately after he met and passed it he turned his lights on high beam, and that he thereupon observed, for the first time, that plaintiffs' automobile was parked in his lane of traffic about 66 feet ahead of him. He testified that he did not apply his brakes with full force for fear that the truck would jackknife, and that he was unable to avoid a collision with the car. He states that he was driving the truck at a speed of about 46 m.p.h. immediately before and at the time of the accident, and that he did not reduce his speed after he became partially blinded by the lights of the oncoming vehicle and the water which fell or splashed on his windshield.

One of the important factual issues presented is whether the lights on the Thibodeaux automobile were burning immediately before and at the time of the accident. Plaintiffs contend that they were burning brightly, while the driver of the truck states that he saw no lights on the car. The trial judge concluded that all of the lights on the automobile were burning, including the two taillights, and that the headlights were on bright as distinguished from dim. We think the evidence clearly supports that finding, and we also conclude that the headlights and both taillights on the Thibodeaux vehicle were burning immediately prior to and at the time of the collision.

Another factual issue presented is whether Elda Thibodeaux was in front of or to the rear of her automobile at the time of the collision. She testified that just prior to and at that time she was from 15 to 18 feet behind, or east of, her automobile, and that she was standing on the north shoulder of the road waving a white sweater to attract the attention of approaching motorists with the hope that one would stop and give plaintiffs some assistance. The driver of the truck testified that he saw no one behind, or east of, the automobile as he approached it, but that he did see a woman in front of the automobile just prior to the collision, and that this woman was hurled about 20 feet through the air to his left, or in a southerly direction, when the vehicles collided.

The evidence shows that the force of the collision caused Elda Thibodeaux to be knocked or thrown to the south side of the highway, her body coming to rest after the accident partially on the south shoulder and partially on the hard-surfaced eastbound or south lane of traffic. The direction in which she was knocked indicates that she could not have been on the north shoulder at the time the accident occurred. Also, the left front headlight of the Thibodeaux car was broken and the nature of some of the lacerations which Elda Thibodeaux sustained indicates that she was struck by the left front portion of the automobile, rather than by the truck.

The trial judge concluded that Elda Thibodeaux was in Front of her car at the time the accident occurred, and that she was not behind it and partially on the north shoulder of the highway, as she contends. We think the evidence supports that finding.

In Lewis v. Quebedeaux, La.App. 3 Cir., 134 So.2d 93, we said:

'The law is well settled to the effect that a motorist is held to have seen an object which, by the use of ordinary care and prudence, he should have seen in time to avoid running into it, and that the driver of an automobile is guilty of negligence in driving at a rate of speed greater than that in which he could stop within the range of his vision. * * * (citations omitted.)

'The general rule which has been established by the jurisprudence of this state is that when visibility is materially impaired because of such things as bright lights, smoke, mist, dust, fog or rain, a motorist is held to a duty of operating his vehicle with an unusually high degree of care. He should reduce his rate of speed to such an extent and keep his car under such control as to reduce to a minimum the possibility of accident from collision. As an extreme measure of safety it is his duty, when visibility ahead is not possible or is greatly obscured, to stop his car and remain at a standstill until conditions warrant going forward. He does not have the right to assume that his course of travel is free from danger or obstruction in the absence of his ability to see clearly ahead, and if he continues to travel as if he knew there was perfect clearance ahead, he does so at his own risk and peril. * * * (citations omitted.)

'The general rule hereinabove stated, however, is not inflexible. Exceptions to that rule have been made in a number of cases where, because of the unusual and extraordinary circumstances which were found to exist in those particular cases, the driver of the moving vehicle was held to be free from actionable negligence in colliding with a stationary object on the road ahead of him.'

The general rule hereinabove stated, or the recognized exception to that rule, have been applied repeatedly by our appellate courts in appropriate cases. See authorities cited in Lewis v. Quebedeaux, supra; and also Carriere v. Aetna Casualty Co., et al., La.App. 4 Cir., 146 So.2d 451; Soprano v. State Farm Mutual Automobile Ins. Co ., La.App. 3 Cir., 155 So.2d 287; Standard Casualty Co. v. Fidelity & Casualty Co. of N.Y., La.App. 1 Cir., 162...