Welch v. Louisiana Oil Refg. Corp. (Two Cases)
| Decision Date | 16 June 1931 |
| Docket Number | 810-811 |
| Citation | 135 So. 617,17 La.App. 100 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | WELCH v. LOUISIANA OIL REFG. CORP. (Two Cases) |
Appeal from the Fourteenth Judicial District Court, Parish of Calcasieu. Hon. Jerry Cline, Judge.
Action by Elsworth Welch against Louisiana Oil Refining Corporation and Mrs. Myrtle Welch against Louisiana Oil Refining Corporation. Consolidated.
There was judgment for plaintiff Mrs. Welch and rejecting demands of plaintiff Mr. Welch, who appealed. Defendant also appealed and Mrs. Welch asked for an increase in judgment.
Judgment affirmed.
Hawkins & Pickrell, of Lake Charles, attorneys for plaintiff appellee.
C. V Pattison, of Lake Charles, and J. C. Henriques and Frank T Doyle, of New Orleans, attorneys for defendant, appellant.
In these two cases, Mr. Elsworth Welch is suing for damages to a Hupmobile sedan, his property, which resulted from a collision with a truck belonging to defendant corporation; and Mrs. Welch, his wife, is demanding damages for personal injuries received in the accident.
The lower court rendered judgment in favor of Mrs. Welch against defendant for $ 1,184.34, but rejected the demand of Mr. Welch, who appeals.
The defendant corporation also appeals and Mrs. Welch is asking for an increase in the amount of damages allowed to her.
All the litigants are therefore dissatisfied with the decree below which quite often happens. Indeed, to render justice is a difficult and hard task.
Mr. and Mrs. Welch are residents of Tulsa, Okla. In July, 1930, they left their home with their daughter, Miss Opal, for a visit to their son, who was living in the town of Sulphur situated west of Lake Charles.
They were coming southward in a sedan on the Beauregard highway; their daughter, Miss Opal, at the wheel driving, with her father, Mr. Welch, on the front seat on her right side. The Beauregard highway, which runs south, is intersected at right angles by the Old Spanish Trail, a paved highway. Beyond the intersection the Beauregard highway continues southward under the name of the Lafitte cut-off.
There was a stop sign at about 400 feet on the north side of the Old Spanish Trail towards which Miss Opal was driving. She did not see this stop sign, nor did her father or mother. The sedan was traveling at about twenty miles an hour, but slackened its speed to about 12 or 14 before reaching the Old Spanish Trail.
The truck of defendant corporation, which collided with the sedan in the intersection of the two highways, was coming from the east on the Spanish Trail, and was going westward towards Lake Charles. Mr. Moore, who was also driving towards Lake Charles, the same direction the truck was traveling, says that, when it passed ahead of him, which was at a short distance east of the intersection, it was moving at about twenty or twenty-five miles an hour.
Tritico, a witness for defendant, was going north on the Lafitte cut-off towards the intersection, and saw the collision. He says that when Miller, the driver of the truck, "put his emergency on to side track the car," it seemed to him that it was then going about twenty-five or thirty miles an hour.
It is shown that there was a filling station on the northeast corner of the intersection, but that it did not obstruct the views of travelers on either of the two highways where they intersected each other. The record shows that Miss Opal saw the truck when it was coming towards the intersection, and that likewise Miller, the driver of the truck, saw the sedan before it reached the Spanish Trail at the intersection. It is well established, and practically undisputed, that the sedan entered the intersection first, and that the driver of the truck saw when it entered.
The truck, which was traveling on the paved highway, had the right of way, but, as the sedan had entered the intersection first, it had the right to proceed across the Spanish Trail, which it was the duty of the truck to respect. Middleton v. Jordan, 10 La.App. 189, 120 So. 668; Marshall v. Freeman, 10 La.App. 12, 120 So. 414; Pope v. Locascio, 13 La.App. 304, 126 So. 727, 729.
The driver of the truck does not deny that he saw the sedan going through the intersection, but says, that, when about twelve feet from it, the car came suddenly to a stop; that he did all he could to swerve to his right, and thus pass in its rear, but without avail, and ran into the rear left wheel of the sedan.
The occupants of the sedan, Mr. Welch, his wife, and their daughter, while admitting they were going slowly, deny that their car had come to a stop in the intersection when it was struck.
Tritico, witness to whom we have heretofore referred, says, that the occupants of the sedan were looking and pointing out for signs, and saw two hands, "one on one side, and one on the other." The fact is that Mrs. Welch was asked if she was not confused, and was not looking for signs, and answered, "We looked." This answer, it is true, was not given in reference to the time when the collision occurred, but shows that they were rather confused about the route they should take, and in which there is nothing strange or singular, as they were strangers from another state, and were not familiar with the locality.
The sedan was coming towards the auto Tritico was driving, and naturally he could not say with positiveness that it had actually come to a complete stop when he saw the truck run into it. If it had not come to a state of absolute immobility, no doubt it was barely moving when the collision occurred. That fact appears from the testimony of Tritico who was rigidly cross-examined by counsel for plaintiffs in reference to statements he had made, to the effect that he had not seen the collision. His testimony shows that he testified in the case reluctantly, and, so far as the record shows, there is nothing whatsoever to indicate that he so conducted himself through corrupt or biased motives.
The lower court found that the weight of his testimony was affected, but was strengthened by the apparent sincerity and plausibility of the account he gave of the occurrence.
We can see nothing which could lead us to believe that he perjured himself in the testimony he gave in the case.
The lower court believed him, and we do not see why we should discredit his testimony. We therefore conclude that Miss Opal had virtually stopped in front of the advancing truck when it ran into the sedan. She had the right to proceed, but it was her duty to continue across the intersection, and, when she stopped or came to a state of practical immobility, she was negligent and at fault.
When Miller passed ahead of Moore's car he was going at about twenty-five miles an hour, as is shown by Moore's and Miller's testimony. According to Tritico, about the time the collision happened, Miller was moving at the speed of about twenty-five or thirty miles an hour.
Miller says the fastest he could make in the truck was thirty-five miles an hour, but that he hardly ever traveled that fast. He says, he slowed down when he got to the intersection. If he did, he must have been going at a lively clip before he reached that point. It is impossible to reach any other conclusion from that character of evidence but that he was moving at twenty or twenty-five miles an hour when he entered the intersection, and had moderated his speed only to a slight degree when he ran into the sedan. He was familiar with the locality where, as he testifies he passed in his truck several times every day and knew that the traffic was quite heavy at the intersection. Knowing that, the speed at which he was traveling at the time must be characterized as being negligent and reckless.
It is shown that the intersection, at that point, is over 100 feet in width, and if he had had his truck under the least control, there can be no doubt that, having seen the sedan when it entered the intersection, he would have had ample time to swing his truck to the right, and would have easily and safely passed around the sedan in the rear.
Much has been said because Miss Welch had not, in obedience to the law, stopped the sedan...
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