Boudreaux v. New York Fire & Marine Underwriters

196 So. 2d 805, 1967 La. App. LEXIS 5638
CourtLouisiana Court of Appeal
DecidedMarch 21, 1967
DocketNo. 1950
StatusPublished

This text of 196 So. 2d 805 (Boudreaux v. New York Fire & Marine Underwriters) 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
Boudreaux v. New York Fire & Marine Underwriters, 196 So. 2d 805, 1967 La. App. LEXIS 5638 (La. Ct. App. 1967).

Opinion

SAVOY, Judge.

This is a suit in tort arising out of an automobile accident which occurred on September 9, 1964, at the intersection of Peach and 13th Streets in the City of Lafayette. Plaintiffs, Aaron Boudreaux and Shirley Boudreaux, who are husband and wife, sued for personal injuries to Mrs. Boudreaux, and for damages incurred by the community. Named as defendants are Livingston Hayes, and his liability insurer, New York Fire & Marine Underwriters, Inc. It is alleged that Mrs. Boudreaux was driving a 1961 Chevrolet automobile owned by the community between the plaintiffs, in a westerly direction along 13th Street, and that as she crossed the intersection of that street with Peach Street, her automobile was struck on the left side by the rear of a 1964 Oldsmobile automobile driven by [806]*806Livingston Hayes, wlio liad backed into the intersection. It is alleged that the sole and proximate cause of the accident was the negligence of Mr. Hayes in backing into a right-of-way street without first ascertaining that the maneuver could be made safely, in failing to obey the Stop sign on Peach Street, in failing to maintain a proper lookout, in driving in a reckless and imprudent manner, and in failing to do what he could and should have done so as to avoid the accident.

In responsive pleadings, the defendants admitted insurance coverage and the accident, but denied the material allegations of the plaintiffs’ original and amending petitions. It was alleged in the alternative that Mrs. Boudreaux was contributorily negligent in operating the vehicle she was driving at an excessive and unreasonable rate of speed in violation of the traffic rules and regulations and conditions in existence at the time of the alleged accident, in leaving her lane of traffic and swerving into the left lane of traffic with the result that she collided with the Hayes vehicle which was and had been stationary at the time of and preceding the collision, in failing to see what she should have seen and to do what she should have done in order to have avoided the accident, and in failing to have her vehicle under her full control.

' After trial on the merits, the district court rendered judgment for plaintiffs, awarding Mrs. Boudreaux $1,500.00 for personal injuries, and awarding Mr. Boud-reaux $462.35 for property damage, medical expenses and loss of wages to the community. From this judgment the defendants have appealed to this Court. Plaintiffs did not file an answer to the appeal.

The issues before us are that of negligence, contributory negligence, and quantum. Defendants maintain that the district court erred in finding that the defendant, Livingston Hayes, was negligent and that Shirley Boudreaux was not con-tributorily negligent. It is contended that the action of the plaintiff, Shirley Boud-reaux, in proceeding into the wrong lane of traffic was the proximate, if not contributing cause, of the collision and resulting damages. Alternatively, it is maintained that the district court abused its discretion in awarding Mrs. Boudreaux $1,-500.00 for personal injuries, and that this award should be reduced. Plaintiffs maintain that the findings of fact and holdings by the district court were correct and should be affirmed.

The record shows that the automobile accident occurred oil a clear day at about 11:00 A.M. on September 9, 1964, at the intersection of 13th and Peach Streets in the City of Lafayette. These streets cross to form a right angle intersection, and the surface of the intersection is gravel. Stop signs are located at the intersection facing Peach Street, and 13th Street is the favored street. Mrs. Shirley Boudreaux was driving a Chevrolet automobile owned by the community between the plaintiffs, in a westerly direction along 13th Street Her two-year-old child was seated in the right front seat. The defendant, Livingston Hayes, occupied his 1964 model Oldsmobile automobile. The vehicles collided within the intersection, with the damages to the Boud-reaux automobile being located at the left front door, and the damages to the Hayes automobile being located at the left rear end.

There is a dispute as to the manner in which the accident occurred. Mrs. Boud-reaux testified that she was proceeding through the intersection in the right lane of travel on 13th Street at a speed of between 15 to 25 miles per hour, when she was struck by the Hayes automobile, which had backed into the intersection from her left. She stated that she glanced both ways before entering the intersection, and noticed a car parked on the right side of Peach Street near the Stop sign located at the southeast corner of the intersection. This parked vehicle apparently blocked her view of the Hayes automobile, and she testified she did [807]*807not see the Hayes automobile until it was coming through her window. Her car traveled to the west of the intersection and came to rest in a ditch on the north side of 13th Street. She testified that the impact was very hard, and the left front door was bent into the steering wheel, pinning her left arm and hand onto the steering wheel. This version of the accident was supported by a witness for the plaintiffs, Mrs. Dorothy Felix, who was standing on the sidewalk approximately one-half block north of the intersection, on the east side of Peach Street. She stated that she saw both cars before the accident, that the Boudreaux automobile was not traveling fast, and she saw the Hayes automobile backing on Peach Street from a point some distance south of the intersection. She stated that the Hayes automobile backed on into the intersection without stopping for the Stop sign, and into the side of the Boudreaux automobile.

The defendant, Livingston Hayes, who is a house mover by trade, testified that he was in the process of moving a house. He had come to the intersection to wait for a police escort. He testified he approached the intersection on 13th Street from the east, turned to the left onto Peach Street, and stopped in the right lane of Peach Street facing south, with about one-half of his automobile protruding into the intersection. He testified he had remained stopped for a period of twenty to forty minutes prior to the time of the accident, and that his automobile was stopped or parked in this position when it was struck by the plaintiffs’ automobile. He placed the point of impact at about eight or nine feet into the intersection, and stated that the force of the impact moved his car around about eight or nine feet to a 45-degree angle. There was about $112.00 damages to his car from the accident. This version is supported by the testimony of the investigating city policeman, Edward Burch. Patrolman Burch, who arrived at the scene of the accident approximately five to seven minutes after it occurred, placed the point of impact in the southwest quadrant of the intersection, approximately four feet south of the center of 13th Street. He fixed this point by the debris on the street, which he believed had come off the back fender of the Hayes vehicle, and by the disarrangement of the gravel in the street, which appeared to show sideward skid marks of the Hayes vehicle. His theory was that Mrs. Boudreaux had swerved to the left and then cut right, and that her car was traveling in a sideward direction at the point of impact. He had given Mrs. Boudreaux a ticket for traveling too fast. Pie testified that after the accident he did not discuss the facts of the accident with the witness, Dorothy Felix, but had only listed her as a witness. However, he did obtain a statement from both drivers. Mr. Hayes had stated that he was struck at a time when he was stopped awaiting a police escort, and Mrs. Boudreaux stated that Mr.

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Bluebook (online)
196 So. 2d 805, 1967 La. App. LEXIS 5638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boudreaux-v-new-york-fire-marine-underwriters-lactapp-1967.