Berry v. Fidelity & Casualty Co. of New York

223 So. 2d 485, 1969 La. App. LEXIS 5081
CourtLouisiana Court of Appeal
DecidedMay 26, 1969
DocketNo. 7688
StatusPublished
Cited by3 cases

This text of 223 So. 2d 485 (Berry v. Fidelity & Casualty Co. of New York) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berry v. Fidelity & Casualty Co. of New York, 223 So. 2d 485, 1969 La. App. LEXIS 5081 (La. Ct. App. 1969).

Opinion

SARTAIN, Judge.

This is an action for damages and personal injuries that resulted from an accident which occurred on February 8, 1964 in Ponchatoula, Louisiana.

The plaintiffs are Mrs. Martha Reno Berry and her husband Foster C. Berry. Mrs. Berry seeks damages for personal injuries to herself. Mr. Berry seeks recovery for special damages incurred by him individually, and as administrator of the estate of his minor son, Wesley H. Berry, for injuries sustained by the boy.

The defendant is the public liability insurer of the McKneely Funeral Home, Inc., the employer of Robert Richard, who was driving a 1958 Chevrolet pick-up truck when it collided with a 1962 Ford Falcon automobile owned by Mr. Berry and driven at the time by his wife.

The trial judge found that the accident was the sole result of the fault of Robert Richard and rendered judgment in favor of Mrs. Berry in the amount of $2,500.00; in favor of Mr. Berry, individually, in the amount of $750.00, and Mr. Berry as administrator of the estate of his minor son, Wesley H. Berry, in the sum of $1,000.00. Defendant has appealed suspensively from this judgment.

There is really no dispute concerning the facts which caused the accident. It was between two vehicles which were in the process of backing up at the time of the collision. The accident occurred shortly after noon on ’North Seventh Street, just off of West Pine Street in Ponchatoula. West Pine Street runs in an east-west direction. North Seventh Street runs in a north-south direction. There is a traffic light at the intersection of these two streets. On the northwest corner of the intersection is a Catholic church and in front of the church there is a parking area sufficient in width to permit vehicles to park perpendicular to and completely off of the street. On the northeast corner of the intersection is an A & P Supermarket. Between the store and North Seventh Street there is also an area for off street parking.

Mrs. Berry testified that she parked in a perpendicular fashion in front of the Catholic church for the purpose of going to A & P to shop. After completing her shopping, she desired to back out onto North Seventh Street, then turn to her left and proceed south on North Seventh Street. She stated that just before she backed out she looked to her right (north) on North Seventh Street and observed the approach of defendant’s pick-up truck which was traveling south on North Seventh Street. She waited for the truck to pass and then seeing no other traffic approaching from the north or pedestrians to her rear, she proceeded to back out of her parking space. She had only gone several feet when she was struck by the pick-up truck that had just passed her.

Robert Richard, the driver of the pickup truck, stated that he was traveling south on North Seventh Street and was on his way back to his place of employment. He explained that as he approached the intersection of West Pine and North Seventh Streets, the light turned red and he stopped. It was then that he remembered a request of his employer to pick up a pack of cigarettes. He looked to his left rear and observed that there was a vacant parking place on the east side of North Seventh Street next to the A & P store. He began to back up with the intention of' backing into the vacant parking place. He stated that he had only moved a short distance when he felt the impact of his vehicle with the Berry vehicle. Richard did not recall seeing Mrs. Berry at any time prior to the collision. He testified that he was looking through his left [487]*487rear view mirror and observed no traffic to his rear. His right rear view mirror had been broken sometime before. Thus, it is clear that he had no way to observe Mrs. Berry as she proceeded to leave her parking space to his right rear.

The police officer who investigated the incident testified that the accident occurred in the southbound lane of traffic or the west side of North Seventh Street at a point approximately forty feet from its intersection with West Pine Street.

Mr. Harry McKneely testified that he arrived at the scene of the accident before the police officer. He observed that the right rear of the pick-up truck was still in contact with the left center of the Falcon. He also placed the point of impact in the southbound lane of North Seventh Street at approximately thirty steps from its intersection with West Pine. He stated that the Falcon was stopped at an angle of 45° to the street with its front wheels still on the parking surface and its rear wheels on the street itself.

The record does not contain oral or written reasons of the trial judge. However, we agree with his decision which cast the defendant alone and rejected its plea of contributory negligence on the part of Mrs. Berry.

In brief and in oral argument before us defendant admits to the negligence on the part of Robert Richard which consisted of the latter’s backing the pick-up truck in the southbound lane of North Seventh Street in a northerly direction without the aid of a right rear view mirror. Defendant, nevertheless, strenuously urges that Mrs. Berry was guilty of negligence which contributed to the accident in that she proceeded to back out onto North Seventh Street without proper precaution and failed to see that which she should have seen, the pick-up truck. We, like the trial judge, must reject this argument because we do not find that Mrs. Berry acted in an imprudent or unreasonable manner. Her testimony is very clear that she got in her vehicle, she looked to her right and saw the pick-up truck, she waited for it to pass, and then seeing no other obstacle in her way, she proceeded to back up. She had every reason to expect that the pick-up truck having passed her and come to a halt at the red light, just a short distance from her, would remain at the red light until it changed and then proceed on. She certainly had no reason to expect that the driver of the pick-up truck would suddenly proceed to back up towards her. At no time did Mrs. Berry enter or in any way block the proper northbound lane of traffic on North Seventh Street nor do any other act which could be deemed a contributing factor to the accident.

We now turn our attention to the various awards made by the trial judge. Mrs. Berry stated that although the accident happened on February 8, 1964 she did not go to a physician until February 17, 1964. She stated that her reason for delaying was that she had hoped that either her discomfort would ease or that she would have an opportunity to go to Camp Leroy Johnson in New Orleans and receive medical attention from the military hospital. Her husband was in the army and overseas at the time. When her condition did not improve she saw Dr. A. J. Feder of Hammond, Louisiana. Dr. Feder stated that his initial examination revealed a large ecchy-motic area of extravasated blood into the tissues of the left hip which he felt was compatible with the injury she suffered nine days previously. He found that the left leg was tender but Mrs. Berry had good knee motion. Because of back complaints he had X-rays made for a possible fracture or dislocation. The X-rays proved to be negative. His diagnosis was that Mrs. Berry “incurred an acute lumbosacral strain, a contusion of the left hip and a contusion of the left leg with a hematoma of the anterior ileum region due to the contusion.” He stated that he treated her with physiotherapy, muscle relaxants and pain relievers and that Mrs. Berry slowly but steadily improved. By March 20, her symptoms [488]*488were such that he felt she was a great deal better.

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Bluebook (online)
223 So. 2d 485, 1969 La. App. LEXIS 5081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berry-v-fidelity-casualty-co-of-new-york-lactapp-1969.