This is a suit against the defendant and his public liability insurer for personal injuries sustained by the plaintiff when he was struck by the defendant's automobile.
The lower court dismissed the suit and plaintiff has appealed.
The accident in question here occurred about 4:45 on the afternoon of November 27, 1954 on U. S. Highway 190 about one-half mile west of Lottie in the Parish of Pointe Coupee. The day was clear and visibility excellent.
The plaintiff was driving a truck in an easterly direction on the said Highway when he reached a point about one-fourth of a mile east of the eastern end of the Atchafalaya Spillway Bridge. There a mattress fell from the truck, and upon discovering this, plaintiff backed his truck to a position slightly east of the point where the mattress lay on the highway, parked the truck on the south shoulder of the roadway, the truck still being headed in an easterly direction. The preponderance of testimony is that the truck was about one-half on the shoulder of the highway and one-half upon the highway. At this point the highway is a four-lane one, with two traffic lanes for eastbound traffic and two for westbound traffic. These lanes are separated by a neutral ground 6 feet, 8 inches in width. Each traffic lane is 10 feet wide and on each side of the highway there is a shoulder 8 feet in width.
Other than the plaintiff, the only eyewitnesses to the accident were the defendant, Piehler, and Mr. and Mrs. Perry, who, at the time of the accident, were following the defendant's car. Mr. and Mrs. Perry were also traveling eastward in the outside traffic lane and about the time they reached the end of the Spillway Bridge, or shortly before, Piehler, also traveling eastward, but in the inside lane, passed the Perry car and proceeded eastward about two car lengths ahead of it. Both Piehler and Perry testified they saw the parked truck and both reduced their speed since, because of its position, they would not pass it abreast or nearly abreast. Piehler, as well as Mr. and Mrs. Perry, testified they saw the truck and also saw the plaintiff standing on the neutral ground. Both drivers reduced their speed and the defendant began to sound his horn, and continued to give this warning signal. All three testified that when Piehler's vehicle was nearly to the point where the plaintiff was standing on the neutral ground he, the plaintiff, stooped and picked up something, stepping into the traffic lane. Although neither Perry nor his wife, who was a passenger in his car, saw the defendant's vehicle strike the plaintiff, they did see the plaintiff step into the traffic lane and realized the defendant was rapidly braking his car. Perry started braking his car but collided with the defendant's vehicle on its rear.
The record does not establish with any decree of certainty how far the defendant's car was from the plaintiff when he stepped into the lane of traffic. The defendant and Mr. and Mrs. Perry all stated the plaintiff stepped right in front of the Piehler automobile. None of these three undertook to fix the exact distance the defendant's car was from the plaintiff at the time plaintiff stepped in front of it, and of course the plaintiff did not attempt to fix this distance since he admitted he did not look toward the west but started to lift the mattress when he was struck. If he turned to his right of course he could not see the defendant's automobile, and his failure to observe oncoming traffic and determine whether he could safely cross the highway and place the mattress back upon the truck clearly constituted negligence upon his part. This negligence is not denied but plaintiff has invoked the doctrine of "Last Clear Chance" or "Discovered Peril", maintaining the defendant saw his peril and could have, by reasonable care, avoided striking him.
Of course, the invocation of this doctrine presupposes negligence upon the part of the person injured since, in effect, this negligence is admitted, but it is charged the other party could, regardless of the negligence of the plaintiff, have avoided the accident. See Bagala v. Kimble, 225 La. 943, 74 So.2d 172; Burns v. Evans Cooperage Co., 208 La. 406, 23 So.2d 165; Dupuy v. Veazey, La.App., 63 So.2d 756
A late Court of Appeal case, Maryland Casualty Co. v. Allstate Insurance Company, 96 So.2d 340 (Second Circuit) has discussed the doctrine of "Last Clear Chance" or "Discovered Peril" and it sets forth the same requisites as are found in the two Federal cases just cited. This case notes the fact that our jurisprudence was broadened in Rottman v. Beverly, 183 La. 947, 165 So. 153, to include those types of cases where the driver of a car did not see but could have plainly seen plaintiff's peril if he had been looking. Now a defendant might be held liable if, under the circumstances, he should have seen the position of the plaintiff. The former cases held the peril must have been discovered. The Maryland Casualty Co. case went on to cite the Bergeron case, stating the following [96 So.2d 344]:
The only issue here is whether the defendant discovered or should have discovered a perilous position of the plaintiff in time to avoid the accident by the exercise of reasonable diligence and care. It is extremely difficult if not impossible to determine from the record exactly how far away the defendant was from the plaintiff when the situation of peril was created. From all of the evidence the trial court concluded this distance to be about 70 feet and that at the time the defendant's vehicle was traveling at the approximate speed of 40
In connection with the duty placed upon a defendant in such a situation language used in Arnold v. Reuther, 92 So.2d 593, is apposite. There, at page 596, the Court of Appeal, Orleans, stated:
Unless it can be determined from the record that the defendant realized what the plaintiff intended to do, or saw or should have seen, something which would have made a reasonable person believe the plaintiff was in peril or was going to cross the highway and place himself in peril, the doctrine sought to be invoked cannot be applied here.
Although the defendant saw the plaintiff some time before the accident, at this time the plaintiff was in no peril as evidently he was on the neutral ground. The first time the defendant could have discovered the plaintiff was in any peril was when he turned and started or staggered onto the highway.
All of the elements necessary for the doctrine of "Discovered Peril" or "Last Clear Chance" to be applied must be affirmatively shown, and since there is no such showing or proof upon the part of the plaintiff, for the reasons hereinabove set forth and upon the authorities cited, the judgment of the district court is affirmed.