Campbell v. American Home Assurance Company

258 So. 2d 81, 260 La. 1047, 1972 La. LEXIS 5630
CourtSupreme Court of Louisiana
DecidedFebruary 3, 1972
Docket51065
StatusPublished
Cited by39 cases

This text of 258 So. 2d 81 (Campbell v. American Home Assurance Company) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Campbell v. American Home Assurance Company, 258 So. 2d 81, 260 La. 1047, 1972 La. LEXIS 5630 (La. 1972).

Opinions

SANDERS, Justice.

Earnest Campbell, a motorist, and Ida Lee Richards, a guest passenger in the automobile, sued American Home Assurance Company under its uninsured motorist coverage for injuries sustained in a collision with an allegedly uninsured vehicle. The two cases were consolidated for trial.

The district court rejected plaintiffs’ demands, holding that they had not discharged the burden of proving that the second vehicle was uninsured. On appeal, the Court of Appeal affirmed the judgment denying recovery, but on a different ground. That court held that both Mr. Campbell, the driver, and Mrs. Richards, the guest passenger, were guilty of contributory negligence barring recovery. 241 So.2d 77, 81. On the joint application of the plaintiffs, we granted certiorari to review the judgment of the Court of Appeal. 257 La. 453, 242 So.2d 577. We reverse and grant recovery.

The accident, a two-car collision, occurred during the afternoon of March 5, 1965, on U.S. Highway 171, south of DeRidder. A grass fire near the place of collision had emitted smoke, which had drifted over the highway. As Campbell drove north, both he and Mrs. Richards observed that several cars, previously traveling north, had pulled off the highway; other vehicles, however, were moving through the smoke. A police officer was at the scene, apparently directing traffic.

[1053]*1053Campbell turned on his lights, reduced his speed from 50 miles to some 10 to 15 miles per hour, a rate he felt compatible with the reduced visibility, and entered the smoke. His testimony is that shortly afterwards, additional smoke settled on the roadway obstructing forward vision. Almost simultaneously, a southbound vehicle, driven by Mrs. Coleman D. Gimnich, struck him head-on, within his northbound lane of travel. Mrs. Richards corroborated his testimony.

The evidence clearly establishes the negligence of Mrs. Gimnich in crossing into plaintiffs’ lane and colliding with their automobile.

The substantial issue is the contributory negligence of the plaintiffs. The Court of Appeal concluded that entry into the smoke patch was contributory negligence on the part of Campbell, the driver. The court also concluded that Mrs. Richards, the guest passenger, was contributorily negligent for failing to warn the driver about the smoke and protest his continued movement.

The burden of proving contributory negligence lies with the defense. In King v. King, 253 La. 270, 217 So.2d 395 (1968), this Court held:

“Contributory negligence is an affirmative defense and the burden rests upon the defendant to establish it by a preponderance of the evidence. Ginlee v. Helg, 251 La. 261, 203 So.2d 714; Theunissen v. Guidry, 244 La. 631, 153 So.2d 869; D & D Planting Co. v. Employers Casualty Co., 240 La. 684, 124 So.2d 908.”

Contributory negligence is conduct on the part of a plaintiff in a negligence action that falls below the standard to which a reasonable man should conform for his own protection. Hidalgo v. Thomas, La.App., 229 So.2d 446 (1969); Henson v. Travelers Insurance Company, La.App., 228 So.2d 667 (1969); Sloan v. Flack, La.App., 150 So.2d 646 (1963); Restatement (Second) of Torts § 463 (1965).

It is well settled that when visibility is impaired by smoke, fog, or other unfavorable atmospheric conditions,' a motorist must exercise care in the operation of his vehicle commensurate with the danger created by the conditions. He must reduce his speed and maintain a close lookout. As an extreme measure, when visibility is destroyed or greatly obscured, he must stop his vehicle until conditions permit him to resume travel in reasonable safety. See Demerest v. Travelers Insurance Company, 234 La. 1048, 102 So.2d 451 (1958); Castille v. Richard, 157 La. 274, 102 So. 398, 37 A.L.R. 586 (1924); 8 Am.Jur.2d, Automobiles and Highway Traffic, § 730, pp. 283-284.

Whether or not plaintiff’s conduct falls below the objective standard for his self-protection is a question of fact, depending [1055]*1055upon all the circumstances. Among the factors to be considered here are the extent of visibility, nature of the roadway, and congestion of traffic. See Theunissen v. Guidry, 244 La. 631, 153 So.2d 869 (1963); Ervin v. Burns, La.App., 126 So. 2d 805 (1961); Felder v. Eagle Star Insurance Company, La.App., 79 So.2d 90 (1955); Peasley v. White, 129 Me. 450, 152 A. 530, 73 A.L.R. 1017 (1930).1

Because it disposed of the case on the insurance-coverage issue, the trial court made no findings of fact. The record, however, is adequate to correlate the factors pertaining to the contributory negligence issue.

U.S. Highway 171 is a two-lane, hard-surfaced highway, serving as a main artery of traffic. Both Mr. Campbell and Mrs. Richards testified that at the time of entry into the smoke, visibility was such that they could move forward at the reduced speed in reasonable safety. Other vehicles were moving safely through the smoke. After entry, however, additional smoke settled, further reducing visibility. Almost simultaneously and before further precautionary measures could have been taken, if they were in fact available, the accident occurred.

The only other testimony concerning the density of the smoke at the time of collision was that of Mr. S. L. Gimnich, an elderly passenger in the Gimnich vehicle: His testimony was that the smoke was too dense for safe entry. This witness, of course, entered the smoke from the north side. Because of the accident, he never reached the south side from which Campbell entered. In our opinion, Gimnich’s testimony is insufficient to establish that the visibility on the south side was so drastically reduced as to require Campbell to take the extreme measure of stopping his vehicle. The measures taken — slowing, lighting, and watching — were reasonable under the circumstances. Hence, we conclude that the defendant has not sustained the burden of establishing contributory negligence on the part of Mr. Campbell, the driver, or Mrs. Richards, the guest passenger.

Under the policy, coverage is provided only when the other vehicle is uninsured. The purpose of this coverage is to afford protection to insured parties when they be[1057]*1057come the innocent victims of the negligence of uninsured motorists. Booth v. Fireman’s Fund Insurance Company, 253 La. 521, 218 So.2d 580 (1969).

LSA-R.S. 22:1406, Par. D(6), provides a method of making prima facie proof by affidavit that the other vehicle is uninsured. The plaintiff offered no affidavit in the present case. Hence, the plaintiff has the burden of proving by other evidence that the offending vehicle was uninsured. See Macaluso v. Watson, La. App., 188 So.2d 178 (1966).

In the present case, the other vehicle was owned by Coleman D. Gimnich and driven by his wife, Gloria. At the time of the accident, Mrs. Gimnich resided in Houston, Texas. At the time of the trial, both Mr. and Mrs. Gimnich resided in England. As proof of the lack of insurance, plaintiff offered the following evidence :

(1) A registered letter from plaintiffs’ attorney to the adverse driver requesting the name of her public liability insurance carrier.
(2) A letter from Coleman D.

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Bluebook (online)
258 So. 2d 81, 260 La. 1047, 1972 La. LEXIS 5630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/campbell-v-american-home-assurance-company-la-1972.