John Herbert Peeples, an employee of the Department of Highways of the State of Louisiana, while driving one of its trucks, sustained personal injuries, and for the recovery of damages occasioned by the accident he has instituted this suit. Made defendants
The petitioner alleged that on April 4, 1956, Velma H. Dobson, an employee of E. P. Dobson acting within the scope of his employment, was driving a 1952 model Ford gasoline truck in a northerly direction on Louisiana Highway No. 4 between Ringgold and Castor, proceeding in the direction of the Town of Ringgold; that the gasoline truck was heavily loaded and equipped with tires so worn that they constituted a grave and serious traffic hazard; that about 2:30 o'clock P.M. on the date mentioned, Velma H. Dobson approached the crest of a hill approximately five miles from the Town of Ringgold on the aforesaid highway; that at the same time John Herbert Peeples was driving a 1954 International dump truck, the property of the Department of Highways, in a southerly direction and meeting the truck driven by Dobson; that as Peeples drove his dump truck up the hill on a gradual incline, he saw the truck being driven by Dobson swerve from its proper traffic lane into the lane occupied by Peeples' truck; that the gasoline truck continued to come down the road toward the dump truck in the wrong lane of traffic, apparently out of control; that when it became apparent that the Dobson vehicle was not going to get back into its own traffic lane and would collide with the dump truck, plaintiff swerved his dump truck to the left hand side of the road and entered the ditch on that side, in an effort to avoid a headon collision, and that plaintiff sustained serious injuries to himself as a result of the dump truck running into the ditch.
In response to plaintiff's petition it is alleged by the defendants that just prior to the accident Velma H. Dobson was driving the truck above described northerly along the hard surfaced blacktopped highway between Castor and Ringgold, Louisiana, about four or five miles south of Ringgold, at a speed not greater than 30 miles per hour, and had just traversed the crest of a hill when the left front tire of the vehicle blew out, thereby causing the truck to leave its right traffic lane and proceed into the left traffic lane, despite all efforts of the driver of said vehicle; that at the time of the blowout, the truck being operated by Peeples and traveling south on the highway, was more than 500 feet from the Dobson truck; and that Velma H. Dobson was able to bring his vehicle to a virtual standstill at a point more than 171 feet from the point where Peeples' truck was driven across the highway into a ditch on the east side thereof. Further allegations are to the effect that the tire which blew out had recently been inspected and there were no indications or evidence whatsoever that said tire would blow out suddenly and without warning. Further answering, and in the alternative, defendants charge Peeples was contributorily negligent, specifying that plaintiff did not have his
Upon the trial the testimony of three eyewitnesses was taken. These included the driver of each truck and Ruben Blackwell, the driver of a third truck, and an employee of the Department of Highways. At the time the dump truck of Peeples crashed into the ditch, Blackwell was following Peeples in a similar truck with a distance of approximately 70 yards being maintained between the two vehicles. Testimony was given by A. E. Whitman, Tom Martin, Jr. and Herman Culpepper as to tire marks upon the surface of the highway and other evidence of a physical nature found upon their arrival at the scene of the accident shortly after it had occurred.
Testimony disclosed that weather conditions were good, the surface of the highway was dry and visibility was excellent. From the crest of the hill near the top of which the tire blowout occurred, and proceeding northerly toward Ringgold, the highway is comparatively straight for several thousand feet. The hill gradually slopes downgrade toward the north for a distance of from 750 to 900 feet from its crest. At the foot of the slope, the highway to the north is level and straight for a considerable distance to the north. Photographs placed in the record indicate the presence of ditches on either side of the highway near the locus of the accident approximately five or six feet deep. The paved portion of the highway is 18 feet in width and the road has shoulders, each of which is three feet in width. Pine trees of substantial size grow along the side of the ditch west of the highway for some distance north of the point of the accident.
An examination of the testimony discloses sharp differences only with respect to the condition of the tire prior to its blowout; the distance separating the two trucks driven by Robson and Peoples at the time when Peeples turned his truck to the left side of the highway and ran it into a ditch; and finally, there is some marked difference in the testimony between Dobson and Peeples as to the speed of the Dobson truck at the time of the blowout and its velocity as it continued to a point of rest north of the locus of the accident. In attempting to resolve the conflicts in the testimony of the three eye witnesses, we pretermit for the present a discussion of the condition of the tire.
A written statement signed by Peeples on April 18, 1956, shortly after the accident occurred, and submitted in evidence, contains his version of what occurred:
Dobson testified that he was driving about 75 feet north of the crest of the hill when his left front tire blew out, thereby causing his vehicle to swerve into the left or west lane of the highway. He estimated the position of Mr. Peeples at that time to be close to the foot of the hill, some 800 or 900 feet north of the crest of the hill which Dobson had just passed. He described his movements from that point as follows:
Ruben Blackwell testified he was trailing Peeples at a distance of about 70 yards when the latter swerved his truck and went into the ditch, and Blackwell immediately stopped his truck about 200 feet north of Peeples' wrecked truck. He testified the distance between the two trucks at the time Peeples made his left turn was about 40 feet and that when Dobson brought his truck to a stop after the accident it was 200 feet north of Peeples' truck. Blackwell said just prior to encountering the Dobson truck, Peeples had passed him at a speed of about 40 miles per hour and a speed of 35 to 40 miles per hour was being maintained by both highway trucks when Peeples started up the hill.
State highway patrolman A. E. Whitman arrived at the scene of the accident a short time after it happened, and while there, together with Tom Martin, Jr., the town marshal of the Town of Ringgold, and Herman Culpepper, Deputy Sheriff of Bienville Parish, regulated traffic and made an investigation. He testified he observed tire marks near the point where Peeples' truck entered the ditch in the west lane of the highway. He said tire marks apparently made by the Peeples truck extended a distance of 75 feet and then for a further distance of 50 feet toward the south there were no tire prints on the surface of the highway, and then again there were tire marks as if caused from a sudden turn of the wheels. Whitman said the marks were found on the highway nearly opposite from the wrecked vehicle. The suggestion here is that Peeples before leaving the west side of the highway applied his brakes which caused the tires to leave prints upon the surface of the highway for a distance of 75 feet and then during the next 50 feet the brakes were released with the result that no further tire prints were registered until the front wheels were apparently quickly turned toward the left.
We think the foregoing testimony points to the following conclusions: Dobson was traveling at a speed of 30 to 40 miles per hour at the time of the blowout. His vehicle traveled some distance before he could bring it under control, which distance he testified was 200 feet. He then traveled an additional 150 feet with his truck under control and thereafter continued to drive the truck on the west side of the highway until he finally turned it to the east side and brought it to a position of rest that Blackwell testified was 200 feet north of the point where Peeples entered the ditch. The record indicates that before anticipating any danger which might arise from the Dobson truck being in his lane of traffic, Peeples was traveling 30 to 40 miles per hour. The truck driven by Peeples entered the ditch at a point approximately 350 feet from the bottom of the hill and approximately 400 feet from the point where Dobson's tire blew out. It is shown that the total distance between the crest of the hill and the bottom of the hill is from 750 to 900 feet.
The testimony of Trooper Whitman must be considered as true and discloses Peeples
With these facts before us shall we find that Peeples prematurely and negligently maneuvered his car out of the path of the gasoline truck? To affirmatively answer the question we must carefully examine the testimony of Dobson, having in mind that Peeples and Blackwell testified that at the moment the highway truck was turned to the left, there was only a short intervening space, from 20 to 40 feet, between it and the gasoline truck. Although we find nothing in the record to cause us to question the verity of the testimony of any of these witnesses the verdict reflects the decision by the jury that the space between the two vehicles at the time Peeples drove his truck to the left was so narrow that he was faced with a sudden emergency which he attempted to solve by turning to his left.
Another important question is the velocity of the gasoline truck after the tire blew out, a distance in excess of 500 feet, tified his vehicle moved 200 feet before he could control it and then he proceeded with the truck under control for a further distance of 150 feet. He also testified that by this time Peeples' truck had entered the ditch and he was nearly at a standstill 171 feet uphill from that point. He then testified he continued driving his truck on the west side of the road and finally brought it to a stop on the east side of the road. Blackwell fixes this point as being 200 feet north of the scene of the accident. The truck was loaded with 1,140 gallons of gasoline, an undisputed fact. Surely this heavy load would tend to accelerate the momentum of the truck as it proceeded down hill. Dobson testified at no time did he apply his brakes during his movement after the tire blew out, a distance in excess of 500 feet. If Dobson's testimony is true it is difficult to understand why Peeples did not realize the gasoline truck was virtually at a stand still while the two vehicles were 170 feet apart; and, we wonder, if he did so recognize this fact, why he should have been concerned as to whether to stop his truck, turn to the left, or why he did not continue normally as if the Dobson truck was stopped. Again we must point out that the jury obviously reasoned as reflected in their verdict, that the gasoline truck was traveling at a speed sufficient to alarm Peeples when he turned to the left. Had the jury believed Peeples was confronted with a situation of a truck on the highway somewhat more than a distance of 300 feet away, virtually standing still, there could have been no reasonable foundation for the jury's verdict. We think it apparent the decision of the jury did not approve of the testimony on this point.
After our examination of the testimony relating to the issues of fact hereinabove discussed, we find ourselves not in disagreement with the conclusions reached by the jury as to the negligence of Velma H. Dobson and that such negligence was the sole proximate cause of the accident.
Counsel for appellants invite our attention to the following authorities as indicative of the contributory negligence of Peeples: Manuel v. Vidrine, 1929, 9 La.App. 446, 119 So. 542; Williams v. Brown, 1937, La.App., 181 So. 679; Davis v. Lewis & Lewis, 1954, La.App., 72 So.2d 612, reversed 1955, 226 La. 1064, 78 So.2d 174; Ramsey v. McDaniel, 1955, La.App., 84 So.2d 276.
In Manuel v. Vidrine and Ramsey v. McDaniel driving conditions were pertinent in resolving the issue of the negligence of the party driving on the right side of the highway. In each case the driver in his proper lane of travel was held negligent because under the existing circumstances he was driving at an excessive rate of speed. The court held in Williams v. Brown the
In Davis v. Lewis & Lewis, a judgment of the court of appeal, holding plaintiff guilty of contributory negligence when he did not stop when it became apparent to him the truck of the defendants would or could not regain its proper lane was reversed by the Supreme Court and judgment rendered in favor of Davis. Where an accident results from a condition of danger arising from the fact two cars are meeting each other in the same traffic lane, it is necessary for the court to examine most carefully all the circumstances that would influence a reasonably prudent motorist acting in a similar situation. Ramsey v. McDaniel is a case in which the trial court had cast the defendant, holding that he had the last clear chance to avoid the collision. On appeal, this court held McDaniel was negligent in driving his car at an excessive rate of speed with road conditions what they were. In support of our views in that decision, the reasoning of the Supreme Court in Davis v. Lewis & Lewis, and a pertinent statement from Blashfield's Cyclopedia of Automobile Law & Practice, Volume 2, Section 919, were relied upon. The principle found in Blashfield declares:
In the cited case the Supreme Court affirmed the decision of the trial judge. The dissenting opinion in the Court of Appeal quoted from the written opinion of the district judge, as follows [226 La. 1064, 72 So.2d 618]:
* * * * * *
In the instant case Peeples was proceeding in a lawful and prudent manner on his side of the road when he found he was meeting a truck several hundred feet away. The truck appeared to be under control as it was moving at a reasonable speed and continuing in a straight line, although in the wrong traffic lane. Peeples' first reaction was the driver of the gasoline truck was lighting a cigarette and had his hand off the wheel momentarily, but as the two vehicles came closer to each other with the intervening space being rapidly narrowed, the other driver did not return to his side of the highway. Peeples testified he did not discover that Dobson had a flat tire until the two vehicles were close together, or as he testified "just about the time I gave my truck a short turn to the left, but I hadn't noticed anything up until that time." This was when he observed the tire "flopping". If we accept the verity of the above testimony, the conclusion is inescapable that Peeples had a right to expect the gasoline truck to return to its side of the road or come to a stop. However, Dobson did neither. He removed his foot from the brake pedal and let it roll without decreased speed until he brought his vehicle to a stop below the locus of the accident. Dobson, himself, testified that after his truck was brought under control he traveled about 150 feet, during which distance he could have returned to his right side of the road. He further stated he had intended to make such a maneuver but when he was about to do so Peeples turned left and went into the ditch. In continuing to remain on the wrong side of the road when he could have returned to his right side of the highway while the two vehicles were still a considerable distance apart, Dobson was directly responsible for creating an emergency, the dire consequences of which Peeples sought to avoid by trying to pass to the left of Dobson.
Was Peeples guilty of contributory negligence in failing to timely realize he must either stop or take the open lane on the left side of the highway? His problem was not complicated by other motorists. Excepting Dobson, there was none other than Blackwell, who was 70 yards distant to his rear. Peeples' problem would have been simple of solution, of course, if he could have been sure Dobson would remain in the same lane of travel.
The effect of defendants' plea of contributory negligence is to say that Peeples was likewise at fault by exercising poor judgment in not sooner attempting to pass to the left or in not sooner bringing his
The position of imminent peril in which the plaintiff found himself was one to which he had not contributed by negligence on his part. In Hudson v. Louisiana Electric Company, 7 La.App. 78, 84, it was said:
The Supreme Court of this state in Snodgrass v. Centanni, 1956, 229 La. 915, 87 So.2d 127, 131, 132, after noting that the law does not require unerring choice of methods of escape where a motorist suddenly finds himself in a position of imminent peril, went on to comment:
We are of the opinion the evidence fully supports the verdict of the jury in finding Peoples was not contributorily negligent.
We find it proper to consider briefly two issues argued on the appeal by counsel for the appellants.
The first of these deals with three special charges which were duly objected to by appellants, but nonetheless given to the jury. We are of the opinion the charges were properly given. The contention does not present a question of reversible error in any event, however, as this court exercises the right to review and alter as to facts and law, the verdict of a jury or the findings of the trial judge. We have examined the record as to these issues and find the rulings complained of were not prejudicial. We think the judge a quo acted properly in giving the special charges.
Counsel for appellants further contend the trial court erred in overruling their exceptions of no cause or right of action. The exceptions were leveled at two points: One of these points relates to the allegations of paragraphs 13 and 14 of plaintiff's petition, in that the allegations admit plaintiff realized the gasoline truck was continuing to come down the road toward Peeples' truck in the wrong lane of traffic, apparently out of control; and the second point is directed at petitioner's allegations that when it became apparent
Plaintiff in charging that it was negligence for the owner and driver of the gasoline truck to drive it on the public highways with a worn or defective tire which could have been detected by proper inspection, draws our attention to LSA-R.S. 32:244, which contains special provisions for vehicles transporting explosives or inflammables on the public highways. Under this statute it is argued there was a special duty to inspect all equipment on the truck. The evidence fails to prove the defective quality of the tire which blew out should have been discovered before Dobson set out on the subject trip. The preponderance of the testimony showed the tire was timely and properly inspected. But, notwithstanding our views upon the tire issue, the point raised does not appear to be material. This is so because Velma H. Dobson, the driver of the truck, after the blowout of the tire, admitted that he had ample time and opportunity to return to his right side of the highway, and his omission to do so was, in our opinion, an independent and intervening efficient cause of the accident. The condition of the tire, whether it resulted in an act of negligence, or not, was therefore a remote and not a proximate causal factor.
Peeples has appealed from the verdict and judgment which denied his right of recovery against E. P. Dobson, the owner of the gasoline truck. The pleadings and testimony admit of the fact that Velma H. Dobson, the driver of the truck, was an employee of E. P. Dobson. Consequently, under LSA-Civil Code article 2317 the doctrine of respondeat superior applies, and E. P. Dobson should have been cast in judgment together with Velma H. Dobson and the insurer of the Dobson truck. The verdict and judgment in this respect must be reversed.
The extent and nature of the injuries sustained by plaintiff are not seriously disputed but the amount of the jury award is questioned by appellants and appellees. The medical testimony of Dr. W. P. Gladney of Homer was relied upon by all parties.
Plaintiff at the time of the accident was 59 years of age with a life expectancy of 14.7 years. He was a regular employee of the Department of Highways and earning a salary of $250 per month. He was in apparent good health before he suffered the injuries complained of in this suit. Briefly we list the medical findings of Dr. Gladney: multiple bruises and contusions, a puncture wound in the head, a whiplash injury and the fracture of the sixth, seventh and eighth ribs on the left side, and in addition to these the ninth rib torn from its cartilage. The whiplash injury caused occipital neuralgia and the fractured ribs produced pneumonia and pleural effusion, the end result of which was to bring about a condition known as pulmonary emphysema. Peeples remained in a hospital from April 4th to April 20, 1956, during which time the neuralgia caused him extreme pain, necessitating the frequent use of sedatives.
Plaintiff has complained he suffers from a severe rash which was aggravated by the accident but this was not made out or established by the medical testimony and
The effect of the pulmonary emphysema was not fully recognized until about two months after the accident. The condition prevents Peeples from exhaling the full amount of air inhaled. The doctor said there was no known specific by which the emphysema may be combatted and that the condition might become progressively worsened or it could become arrested. It was Dr. Gladney's opinion that due to this condition plaintiff was totally and permanently disabled. The effect on plaintiff's physical condition is to prevent him from taking any appreciable amount of exercise as he is constantly short of breath. The evidence makes it clear plaintiff cannot be expected to resume his occupation as a truck driver or any other employment requiring some bodily exercise. The doctor also testified the emphysema would prove a dangerous complication should Peeples contract pneumonia or other respiratory troubles.
The record indicates plaintiff has had some prior experience as a merchant and clerk. We are doubtful these talents will prove helpful to plaintiff's future earning capacity. Using the foregoing as criteria, we are of the opinion the verdict of the jury is inadequate and it should be increased to $25,000. The verdict in favor of intervenor does not present an issue on the appeal.
Accordingly, and for the reasons hereinabove set forth, the judgment from which appealed is hereby reversed insofar as it rejects plaintiff's demands against E. P. Dobson, and further we hold the judgment against the defendants, including E. P. Dobson, should be increased to $25,000 and will be amended accordingly. As so reversed in part and amended in part, the judgment is affirmed in all other respects. The judgment will in part only be recast to read as follows:
It is ordered, adjudged and decreed that defendants, E. P. Dobson, Velma H. Dobson and Manufacturers Casualty Insurance Company, in solido, pay to the plaintiff, John Herbert Peeples, the sum of $25,000 with legal interest thereon from date of judicial demand until paid.
It is further ordered that E. P. Dobson, Velma H. Dobson and Manufacturers Casualty Insurance Company pay all costs of this suit, including costs of the appeal.