Traders & General Ins. Co. v. Robison

• Decision Date: 17 December 1973
• Docket Number: Nos. 9622,9623,s. 9622
• Parties: TRADERS & GENERAL INSURANCE COMPANY v. Johnnie ROBISON et al. Johnnie ROBISON v. Richard BURTON et al.
• Court: Court of Appeal of Louisiana — District of US

Page 178

289 So.2d 178

TRADERS & GENERAL INSURANCE COMPANY v. Johnnie ROBISON et al.

Johnnie ROBISON v. Richard BURTON et al.

Nos. 9622, 9623.

Court of Appeal of Louisiana, First Circuit.

Dec. 17, 1973.

Joel B. Dickinson, Baton Rouge, for Johnnie Robison, in 9623.

L. Michael Cooper, Baton Rouge, for Traders & Gen. Ins. Co., and others.

M. O'Neal Walsh, Baton Rouge, for Employers Mut. Liab. Ins. Co. of Wis.

Kenneth E. Barnette, Baton Rouge, for Richard M. Burton & United Services Auto Assn.

Before LANDRY, ELLIS and PICKETT, JJ.

LANDRY, Judge.

Appellants in these consolidated cases appeal judgments dismissing all claims for vehicular damage sustained in a collision in which a Cadillac owned by plaintiff, Robison, struck the rear of a Chevrolet owned by Felix Prickett after the latter vehicle was disabled in a prior intersectional collision with a Ford owned by defendant, Richard Burton. The initial accident occurred as the Burton vehicle was attempting to cross a major four lane highway in the path of the Pickett vehicle traveling in a westerly direction in the outside westbound lane of the favored roadway. We affirm in part and reverse in part.

The principal issues presented on appeal are: (1) Was the negligence of Mrs. Burton which caused the first accident, a proximate cause of the second collision; (2) Was the driver of the disabled Pickett vehicle negligent in failing to warn motorists of the danger posed by the stalled automobile; (3) Was Mrs. Robison negligent in failing to timely observe the disabled Pickett car and take evasive measures to avoid the second accident, and (4) Is the negligence of Miss Seals, if any, imputable to the vehicle's owner, Pickett, who is Miss Seals' stepfather?

The accident occurred at approximately 12:20 P.M., Saturday, March 27, 1971, a clear, dry day, at the intersection of Florida Boulevard (Florida) and Little John Drive (Little John), in the City of Baton Rouge. Florida, an east-west roadway, is a major four lane artery with a neutral ground separating its opposing lanes of travel. Service roads are located on both the north and south side of Florida, each service road being separated from Florida by a wide neutral ground. Little John, the subordinate road, is a two lane north-south street, and is controlled by stop signs where it intersects Florida. The record does not show the precise speed limit on Florida. Accident reports submitted in lieu of the testimony of investigating officers, show the speed limit to be 50 miles per hour in one instance and 70 in another. It is undisputed that the speed limit on Little John is 30 miles per hour.

The initial accident occurred as Miss Seals, a minor, was proceeding westerly in the outside lane of Florida, accompanied by her mother, Mrs. Pickett. The Pickett car was insured by Traders & General Insurance Company (Traders). Mrs. Burton simultaneously approached the intersection traveling northerly on Little John with the intention to cross Florida, turn right on the north service road and continue in an easterly direction. Mrs. Burton was driving a 1966 Ford which belonged to her husband and was insured by United Services Automobile Association (United). When Miss Seals reached a point a short distance from the intersection, Mrs. Burton proceeded across the westbound lane of Florida in which the Pickett vehicle was traveling. It appears that due to failure of traffic on the northern service road to yield the right of way, Mrs. Burton slowed her automobile and stopped prior to clearing the outside westbound lane of Florida. Miss Seals was unable to stop her car and struck the right rear of the Burton car. Following this collision, the Burton car came to rest completely off Florida but near the northern service road. The Pickett vehicle was rendered inoperable and came to rest in the outside westbound lane of Florida headed in a westerly direction. Miss Seals vainly attempted to start her car. She even considered attempting to physically shove the vehicle off Florida, but was advised by her mother not to do so. Miss Seals then attempted to activate the emergency flasher lights on her vehicle, but found them inoperable. Miss Seals and her mother vacated the vehicle, following which Miss Seals and Mrs. Burton went to a gas station on the north side of the north service road and reported the accident to the police. It is undisputed that no one attempted to flag traffic on Florida to warn motorists that the Pickett car was disabled. Neither did Miss Seals raise the trunk or hood of her car as a warning to westbound motorists that the car was at rest on the highway. Mrs. Robison struck the stalled Pickett car approximately 8 to 10 minutes after the first accident.

Robison's vehicular damage amounted to $2,962.61, of which sum he was paid $2,862.61 by his insurer, Employers Mutual Liability Insurance Company of Wisconsin (Employers). Robison did not repair his car, but traded it in its damaged condition for which he received an allowance or credit of $2,600.00 on the purchase of a new automobile for the price of $8,426.70. In his suit, Robison sues Burton and Burton's insurer for $2,963.89, the difference between the cost of Robison's new automobile and the sum of the damages paid by Employers and the cash allowance granted for the traded damaged car. Robison contends that Mrs. Burton's negligence in causing the first accident was also a proximate cause of the second collision. Burton and his insurer third partied Pickett and Traders alleging Miss Seals' negligence to be the sole proximate cause of the accident and resulting damage to the Robison vehicle. Traders filed a separate action against Robison and Employers maintaining Mrs. Robison was solely at fault, and therefore liable to Traders for the amount Traders paid Pickett for damages to the Pickett automobile. Robison reconvened in Traders' action asserting that Miss Seals' negligence was the sole proximate cause of the second collision. The cases were consolidated for trial. The court rejected the demands of all claimants based on the following findings and conclusions: (1) Mrs. Burton was solely at fault in causing the first accident, but her negligence was too remote in point of time to constitute a proximate cause of the second collision; (2) Miss Seals was negligent in failing to warn traffic of the presence of her disabled vehicle upon the highway following the second accident; (3) Mrs. Robison was negligent in failing to maintain a proper lookout which negligence was a proximate cause of the second collision, and (4) Mrs. Robison did not have the last clear chance to avoid the second collision as alternatively contended by Pickett and Traders. The trial court did not discuss the issue of imputability of Miss Seals' negligence to Pickett.

On appeal Burton and United maintain the trial court correctly held Mrs. Burton was not responsible for the second accident. Alternatively, Burton and United contend Robison failed to establish damages recoverable at law inasmuch as Robison received payment of his damages from Employers and is not legally entitled to the difference required to purchase a new vehicle. In the further alternative, Burton and United argue that should they be held liable to Robison, there be judgment in their favor on their third party demand against Pickett and Traders.

Robison maintains the trial court erred in rejecting his demands on the grounds of Mrs. Robison's negligence, and also erred in holding Mrs. Burton's negligence was not a proximate cause of the second accident.

Traders argues that the trial court erred in: (1) Finding that Miss Seals negligently contributed to the second accident; (2) Inferentially imputing Miss Seals' negligence, if any, to Pickett by rejecting Traders' claim for the damages paid Pickett; (3) Failing to find that Mrs. Robison had the last clear chance to avoid the accident, and (4) Alternatively, failing to hold that Robison had not proven damages recoverable at law.

Mrs. Robison testified she was proceeding westerly in the outside lane of Florida at a speed of about 40 miles per hour. Another westbound vehicle preceded her in the same lane approximately 100 feet or more ahead, which vehicle obstructed her view of any other forward vehicles. She stated that the vehicle ahead suddenly veered into the left lane whereupon she saw the Pickett car in the southside lane. She at first thought the Pickett car was moving. Nevertheless she reduced her speed while she was still approximately 100 feet or more from the Pickett car. She then realized the car was stopped, but could not change lanes because of the presence of a vehicle beside her in the inside westbound lane. She forcefully applied her brakes, but could not stop in time to avoid a collision. In this connection, the record contains the testimony of Mr. Robison, a former state trooper, to the effect he arrived at the scene shortly after the accident and paced off 50 feet of skid marks left by Mrs. Robison's vehicle leading to the point of impact.

Mrs. Burton, Mrs. Pickett and Mary Seals all testified in essence that Mrs. Robison approached the intersection in the outside lane of travel at a high rate of speed. They also stated Mrs. Robison had an unobstructed view of the stopped vehicle; that there was no car immediately in front of Mrs. Robison traveling westerly in the same lane as Mrs. Robison, and that there was no car beside Mrs. Robison in the inside lane. Neither of these witnesses heard the application of Mrs. Robison's brakes. Mrs. Pickett and Miss Seals also testified that the skid marks found at the scene were made after the Robison vehicle struck the Pickett car and resulted from the Pickett car being pushed about 50 to 70 feet beyond the point of impact. All three of these witnesses testified they were standing near the service road. Except for the testimony of Miss Seals, no witness attempted to fix the distance they were situated from the...