Zachary v. Travelers Indem. Co.

• Decision Date: 09 November 1988
• Docket Number: No. 87-885,87-885
• Citation: Zachary v. Travelers Indem. Co., 533 So.2d 1300 (La. App. 1988)
• Parties: Jimmy ZACHARY, Plaintiff-Appellant, v. TRAVELERS INDEMNITY COMPANY, Defendant-Appellee. 533 So.2d 1300
• Court: Court of Appeal of Louisiana

Page 1300

533 So.2d 1300

Jimmy ZACHARY, Plaintiff-Appellant, v.TRAVELERS INDEMNITY COMPANY, Defendant-Appellee.

No. 87-885.

533 So.2d 1300

Court of Appeal of Louisiana Third Circuit.

Nov. 9, 1988.

Edward J. Milligan, Jr., Lafayette, for plaintiff-appellant.

Dauzat, Falgoust, Caviness & Bienvenu, Jerry Falgoust, Opelousas, for defendant-appellee.

Before DOMENGEAUX, LABORDE and KNOLL, JJ.

DOMENGEAUX, Judge.

Jimmy Zachary commenced these proceedings to recover damages for the injuries he sustained in an automobile-bicycle accident.Zachary, who was riding the bicycle, named as the only defendant, Travelers Indemnity Company(Travelers), the automobile liability insurer of the vehicle operated by Bobby J. Guidroz with which he collided.

The plaintiff sought at trial $201,175.99, plus legal interest, for past, present and future pain, suffering, mental anguish, anxiety, limitation of motion and impairment of functions, lost wages and/or diminished earning capacity and medical expenses.Only $1,175.99 of the plaintiff's demand represented past medical expenses.

The Trial Court, subsequent to a trial on the merits, rendered judgment in favor of Zachary.The plaintiff was awarded $2,500.00, plus his medical expenses, but the Trial Judge assigned ninety percent of the fault for the accident to Zachary and reduced his recovery accordingly.

The accident in issue occurred on July 18, 1985, at about 8:30 p.m.The day was described by the plaintiff as clear and sunny.Zachary specifically testified that at the time of the accident it was still daylight.

The police officers who investigated the accident, Sgt. Austin W. Nacoste of the Louisiana State Police and OfficerMichael Fitzgerald, who at the time was a Port Barre Police Officer, suggested that the evening was not as clear and bright as portrayed by the plaintiff.Officer Nacoste testified that he was notified of the accident at approximately 8:37 p.m.He stated that the day in question had been cloudy and that when he arrived on the scene the time of day was comparable to dusk or dawn.He noted in his records that sunset on the day in question had been 8:07 p.m., but he did not state whether it was daylight savings time.Sgt. Nacoste also recounted that he was using his headlights when he was called to the scene.

Officer Fitzgerald, who had only recently joined the Port Barre police force, testified that he arrived on the scene at 8:42 p.m.He testified that the evening was a "normal night", although his report did differ in minor respects from the report of Officer Nacoste.Fitzgerald, as did Nacoste, indicated that he had been using the headlights on his patrol car prior to being called to the scene.

The scene of the accident was Louisiana Highway 103 in St. Landry Parish as it approaches Louisiana Highway 190.The collision occurred directly in front of the Guidroz residence on Highway 103.Highway 103, as it passes the Guidroz residence, is a standard twenty-four foot wide two lane blacktop highway with, as described by one of the investigating officers, yellow dashes down the center.The highway runs north-south, with the Guidroz residence located on the northbound lane side of the street.

Guidroz was in his front yard speaking with Fitzgerald just prior to the accident.A car sped down Highway 103 in a northerly direction as the two men were conversing, causing Fitzgerald, who was on-duty at the time, to end the conversation and pursue the driver.Guidroz, whose State Police car was parked in his driveway, chose to follow Fitzgerald to render assistance and out of simple curosity.

Zachary, at this time, was riding a friend's ten-speed Magna bicycle down the middle of the southbound lane of Highway 103 a short distance from and traveling in the direction of the Guidroz residence.Officer Fitzgerald, traveling north, passed Zachary and noticed the plaintiff change from the southbound lane to the northbound lane.Fitzgerald remembered looking in his rear view mirror and seeing Zachary change lanes as he passed him.Zachary stood out in Fitzgerald's memory because Fitzgerald thought the plaintiff was riding very carelessly.

When Guidroz entered his automobile and began backing out of his driveway he was unaware Zachary was approaching.Prior to entering Highway 103, he looked to his right to check the northbound traffic, the traffic which would have been in the lane adjacent to his home.He did not look to his left because he said he did not intend to cross the center line of the street and obstruct traffic in the southbound lane.

The collision occurred as the Guidroz vehicle was partially in the street in the northbound lane and partially in the driveway.Guidroz maintains that his vehicle was only about two feet into the road when, prior to the accident, he heard Zachary "holler".Guidroz stated that when he heard the plaintiff's call he immediately stopped his vehicle, shortly after which Zachary's front bicycle wheel collided with the left rear panel of the car near the bumper.Guidroz's statement as to the point of impact was supported by both Nacoste and Fitzgerald based on evidence they observed at the scene.

Zachary, who was wearing a white T-shirt and jeans, maintains that as he was riding his bicycle past Guidroz's driveway, Guidroz accelerated rapidly and struck his bike with the left side of the rear bumper.The plaintiff testified that he was halfway past Guidroz's driveway when he was struck and attributed the accident, in part, to a large wooden fence on the Guidroz property which obstructed Guidroz's view of the road.Zachary testified during a deposition that the fence was only two or three feet from the roadside, however, at trial he estimated the distance, which the bailiff measured, to be approximately twelve feet.The plaintiff's testimony was, however, countered by Fitzgerald, Nacoste and Guidroz who respectively stated that the fence was fifteen to twenty feet, in excess of twelve feet and forty feet from the roadway.

The evidence presented at trial further suggests three additional factors which could have contributed to the accident.The most significant factor is the fact that Zachary was riding his bike very fast and had poor brakes.Nacoste and Fitzgerald both testified that the handlebar braking system of the ten-speed bike was not functioning properly.They stated that when the brakes were engaged the brake pads did not make contact with the tire rims or the wheels.The second factor concerns the fact that Zachary was traveling on the wrong side of the highway and was not riding close to the curb.Zachary was traveling in a southerly direction in the northbound lane.The final possible cause of the accident is that the plaintiff was riding on the highway at dusk and had no headlights on his vehicle.

Zachary sought this review and has assigned two errors.He maintains that the Trial Judge erred in the following respects:

(1) The Trial Judge was manifestly erroneous in assessing ninety percent of the fault for the accident to him and ten percent to Guidroz; and

(2) The Trial Judge abused his discretion when he awarded the "grossly inadequate" sum of $2,500.00 for general damages, future medical expenses and lost wages and/or earning capacity.

The plaintiff's initial issue on appeal challenges the Trial Judge's assessment of fault.Zachary maintains that his actions demonstrate that he was free from fault.The plaintiff, in suggesting that the responsibility for the accident lies entirely with Guidroz, cites as authority La.R.S. 32:124(1950)(amended 1962).R.S. 32:124 provides:

The driver of a vehicle about to enter ... a highway from a ... driveway ... shall stop such vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across any alleyway or driveway, and shall yield the right of way to any pedestrian as may be necessary to avoid collision, and shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard.

The jurisprudence interpreting R.S. 32:124 indicates that drivers entering thoroughfares from private driveways must exercise an unusually high degree of care and that the entering motorist has the primary duty of avoiding a collision with vehicles on the highway.Sykes v. Davis, 289 So.2d 199(La.App. 1st Cir.1973);O'Stean v. Safeco Insurance Company of America, 192 So.2d 620(La.App. 2nd Cir.1966);Schackai v. Tenneco Oil Co., 436 So.2d 729(La.App. 4th Cir.1983), writ denied, 440 So.2d 759(La.1983).

Travelers in response contends that the Trial Judge's decision was not manifestly erroneous and suggests that the judgment should be upheld.The appellee, in support of its position, directed the Court's attention to Title 32 of the Louisiana Revised Statutes, the Louisiana Highway Regulatory Act (Highway Act), specifically citing Sections 193,194,197,329and346. La.R.S. 32:193, 194 and 197(1962);La.R.S. 32:329(1960), amended (1974);La.R.S. 32:346(1960)(amended 1962).Sections 193and194 grant bicycle riders all the rights and privileges of motor vehicle operators, but also impose comparable duties.Travelers specifically noted that Zachary was traveling on the wrong side of the highway.Section 197 mandates, in part, that bicycle operators "shall ride as near to the right side of the roadway as practicable."R.S. 32:197, supra.The appellee suggests and the evidence establishes that, in addition to being on the wrong side of the highway, Zachary was riding approximately three feet from the center line, nine feet from the curb.

Sections 329and346 address the proper equipment with which Zachary's bicycle should have been outfitted.Section 329 mandates that every bicycle ridden at night be equipped with a front lamp capable of emitting a white light visible from a distance of at least 500 feet.The remaining aspect of the Highway Act, Section 346, provides that "[e]very bicycle shall be equipped with a brake...