Vowell v. Manufacturers Cas. Ins. Co.

• Citation: 86 So.2d 909,229 La. 798
• Decision Date: 20 February 1956
• Docket Number: No. 42033,42033
• Parties: Ray VOWELL v. MANUFACTURERS CASUALTY INSURANCE COMPANY et al.
• Court: Supreme Court of Louisiana

Page 909

86 So.2d 909

229 La. 798

Ray VOWELL v. MANUFACTURERS CASUALTY INSURANCE COMPANY et al.

No. 42033.

Supreme Court of Louisiana.

Feb. 20, 1956.

Rehearing Denied March 26, 1956.

Hobbs & Yeates, Minden, for plaintiffrelator.

Gravel, Humphries, Sheffield & Mansour, Alexandria, for intervenor.

Jackson, Mayer & Kennedy, Shreveport, for defendants-respondents.

SIMON, Justice.

Ray Vowell instituted this suit for damages in the sum of $155,000 for personal injuries sustained by him as a direct result of an accident which occurred on U. S. Highway 80, five miles west of Minden, Louisiana, on December 11, 1951, at about 5:30 a. m., involving a Chevrolet pickup panel truck and a Chevrolet truck and semitrailer loaded with lumber. The lumber truck was owned by W. L. Bennett of Ruston, Louisiana, and at the time of the accident was being operated by Ernest Lynn. Plaintiff was a passenger in the pickup truck, which was owned by his employer, George W. Fowler, and which at the time of the collision was operated by another employee, Francis A. Graham. Other occupants in the pickup truck were Jack Salmon and Roland Dyck. Plaintiff, Vowell, was sitting in the cab of the pickup truck between Graham and Jack Salmon. Roland Dyck was riding in the 'doghouse' in the back of the truck. All were employees of George W. Fowler and at the time of the accident were on their way to work and in the scope and in the course of their employment. All received injuries.

Vowell and each of the other occupants of the pickup truck instituted separate suits against W. L. Bennett, the owner of the lumber truck, and his insurer, Manufacturers Casualty Insurance Company, for damages for personal injuries incurred by them as a result of the accident.

The Coal Operators Casualty Company intervened in the suits brought by Vowell, Dyck and Salmon, alleging that it was the workmen's compensation insurer of George W. Fowler, employer of said parties, and that as a result of the accident it had been obliged to pay them compensation and medical expenses as set forth in their respective suits, and, accordingly, prayed for reimbursement of compensation payments out of whatever judgments may be rendered in favor of plaintiffs.

The defendants W. L. Bennett and Manufacturers Casualty Insurance Company filed joint answers to each of plaintiffs' petitions and denied that Ernest Lynn was guilty of any negligence. They contended that the sole and proximate cause of the accident was Graham's negligent operation of the pickup truck. Alternatively, they pleaded contributory negligence on the part of plaintiffs.

The lower court consolidated these cases for purposes of trial but rendered separate judgments in favor of each plaintiff: in favor of Vowell in the total sum of $20,700, in favor of Roland Dyck in the total sum of $5,500, in favor of Jack Salmon in the total sum of $2,600, in favor of Francis Graham in the total sum of $500. In the suits filed by Vowell, Dyck and Salmon the district court further decreed that the Coal Operators Casualty Company be reimbursed with the respective amounts of compensation payments made to plaintiffs, all as set forth in intervenor's petition.

Appeals were taken to the Circuit Court of Appeal, Second Circuit, which court also consolidated these cases for purpose of appeal and reversed the judgments of the district court, thereby absolving the defendants of liability for negligence on the part of Ernest Lynn.

The Court of Appeal concluded that the sole and proximate cause of the accident was the negligent operation of the pickup truck at an unsafe speed under prevailing weather conditions. It further concluded that the operator of defendant's lumber truck was free of any act of negligence. The claims of all plaintiffs were dismissed.

Plaintiffs applied for writs, which were granted by this court in each case. The matters are now before us for review.

The main issues before us are: (1) Whether Lynn, the driver of defendant's lumber truck, was guilty of negligence. (2) Whether Graham, the driver of the pickup truck, was guilty of any negligence contributing to the accident so as to bar his recovery. (3) Whether plaintiffs Vowell, Salmon and Dyck as guest passengers were contributorily negligent so as to bar recovery for injuries sustained by them as a result of this accident.

The record discloses that Graham approached the scene of the accident at a speed of approximately 40 miles per hour. On rounding a small curve and starting up a slight incline in the roadway, he observed a white panel milk truck with its reflectors, tail and clearance lights burning. He also observed that this milk truck was parked on the right shoulder of the roadway with its two left wheels on the outer edge of the blacktop or paved portion of the highway, a position which did not obstruct traffic in the right lane. When Graham reached a point approximately 75 feet from the milk panel truck he saw for the first time the lumber truck parked in his lane of traffic, without lights, reflectors, flares or other warning signals. Graham had also observed approaching traffic in the left lane of traffic. Realizing the imminent danger of passing the lumber truck on the left because of the approaching eastbound traffic, he immediately applied his brakes, but was unable to stop the truck in time to avoid colliding into and jamming his truck under the rear of the parked lumber truck.

Though the driver of the lumber truck contends that he was unable to pass the milk truck to its left without hazard to oncoming eastbound traffic, we find that he stopped his truck in the right lane of traffic and remained there for at least 4 or 5 minutes, parked parallel and alongside of the milk truck. No effort is made by him to explain this prolonged stay in the center of the highway. There is no evidence that the eastbound oncoming traffic was so heavy or steady as to warrant such a delay. On the other hand, we find evidence in the record to show that there was sufficient room on the highway for the lumber truck to pass the milk truck and still remain in its proper lane.

There is no question that the lumber truck completely blocked the right lane of traffic; the controversy is whether the lumber truck was stopped without any taillights. The evidence disclosed by the record as to this important phase of the case is accurately stated in the written opinion of the trial judge as follows:

'I am convinced that the lumber truck came upon this parked milk truck and saw an oncoming vehicle and fearing that there was insufficient room for such a situation came to a stop approximately parallel with the milk truck. I am, also, convinced that the lumber truck did not have any tail lights burning at the time of the collision with the rear end thereof. There is conflicting evidence on this important point of the case, but I am bound to believe Mr. Graham's view, in light of all the other factors of the case. Of all the witnesses, who testified in the case, Mr. Graham was the one most impressive to me. Where there is a hopeless conflict in testimony, it becomes the trial judge's painful duty to carefully consider all of the evidence and then be satisfied of a true version of same. As for myself, I am satisfied that the tail lights were not burning on the lumber truck at the time of the accident.

'The pick-up truck was traveling about 40 miles per hour, when the driver saw the parked milk truck. He then saw an oncoming car, which prevented him from seeing the lumber truck, which was directly in his lane of traffic, until he was so close that the accident was unavoidable. He collided with the rear of the truck, causing personal injuries to all of the plaintiffs.'

An examination of the evidence in its entirety convinces us that the trial court was correct in its conclusion that the driver of the lumber...