Watkins v. GREAT AMERICAN INDEMNITY CO. OF NY

• Decision Date: 04 August 1951
• Docket Number: Civ. A. No. 3226.
• Citation: Watkins v. GREAT AMERICAN INDEMNITY CO. OF NY, 98 F. Supp. 603 (W.D. La. 1951)
• Parties: WATKINS v. GREAT AMERICAN INDEMNITY CO. OF N. Y. et al.
• Court: U.S. District Court — Western District of Louisiana

98 F. Supp. 603

WATKINS v. GREAT AMERICAN INDEMNITY CO. OF N. Y. et al.

Civ. A. No. 3226.

United States District Court W. D. Louisiana, Opelousas Division.

August 4, 1951.

Dufour, St. Paul & Levy, Titche & Titche, New Orleans, La., for plaintiff.

Davidson & Meaux, Lafayette, La., for defendants Varisco and Chester.

J. Frank Smith, Joseph Onebane and William M. Meyers, Lafayette, La., for defendant Great American.

DAWKINS, Chief Judge.

This is an action in tort involving the alleged collision of a motorcycle with a truck moving in opposite directions. Plaintiff's claim of liability on the part of defendants is set forth in the complaint as follows:

"IV.

"That the said truck and trailer for reasons unknown to your petitioner, suddenly and negligently swerved from its right hand side of the highway, crossed the center line of the highway and struck and seriously injured your petitioner who was then riding his motorcycle on his right hand side of the highway and petitioner, therefore, specially pleads the doctrine of res ipsa loquitur.

"V.

"That in the alternative and without waiving the doctrine of res ipsa loquitur, petitioner alleges that the aforesaid accident and resulting injuries to himself were caused by the sole negligence of defendants, Nunzie J. Varisco and Alfred Chester, Jr., in the following respects:

"(a) That the aforesaid truck and trailer was being driven at an excessive rate of speed under the circumstances and conditions then existing.

"(b) That the driver of the aforesaid truck and trailer permitted it to go out of his control, cross the center line of the highway and strike petitioner."

Defendants have moved to strike Article 4 in its entirety and, in the alternative, the allegation: "* * * and petitioner therefore specially pleads the doctrine of res ipsa loquitur"; further, "in the alternative * * * to dismiss from the said complaint the count asserting this claim on the basis of the doctrine of res ipsa loquitur * * * on the ground that this principle does not apply to the present litigation and is prejudicial to defendants."

In view of the language of Article IV, thus quoted, it appears the claimant was confronted with a peculiar situation in which the defendant's truck and trailer suddenly turned "across the center line of the paved highway" and collided with the motorcycle, inflicting serious personal injuries upon plaintiff and damaging his cycle extensively. This situation on its face portrays circumstances quite abnormal and not to be expected, where two motor vehicles are traveling in opposite directions, in the early morning hours, presumably with headlights burning, and in full view of each other upon the highway. In the nature of things, normally, if the driver of the truck was not willing to inform plaintiff truthfully of what caused its sudden swerving out of its own proper lane of traffic, since the former alone...