Capone v. Cotton Trade Ware Houses, Inc.

41 So. 2d 505, 215 La. 692, 1949 La. LEXIS 987
CourtSupreme Court of Louisiana
DecidedMay 31, 1949
DocketNo. 38934.
StatusPublished
Cited by2 cases

This text of 41 So. 2d 505 (Capone v. Cotton Trade Ware Houses, Inc.) 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
Capone v. Cotton Trade Ware Houses, Inc., 41 So. 2d 505, 215 La. 692, 1949 La. LEXIS 987 (La. 1949).

Opinions

FOURNET, Justice.

The plaintiff instituted this suit to recover $1,588.44 from the Cotton Trade Warehouses, Inc., and its insurer, The Employ•ers’ Liability Assurance Corporation, Ltd., for the cost of repairing his passenger bus, -allegedly damaged through the negligent operation of the corporation’s tractor-trailer unit in attempting to negotiate a left turn across a four-lane highway in front of the plaintiff’s bus that was then too close to avoid striking the unit, and the •sum of $3,000 for the loss of business during the time the bus was under repair.

The defendants, denying the accident occurred as alleged, averred the truck unit had already turned across the highway and was almost entirely out of the westbound traffic lane at the time of the accident, which they charged was caused by the negligence of the plaintiff’s bus driver in traveling at such, a rapid rate of speed he could not bring the bus to a stop and avoid striking the trailer unit, and the warehouse corporation sought, by way of reconvention, to recover $496.48 from the plaintiff for the cost of repairing the damaged trailer. In the alternative the defendants pleaded the contributory negligence- of the bus driver.

After trial on the merits judgment was rendered in favor of the plaintiff for the cost of repairing the bus, $1,588.44, but his demand for anticipated loss of earnings was rejected, as was also the reconventional demand. The defendants appealed from this judgment and the plaintiff, answering the appeal, seeks to have the judgment amended by including therein the $3,000 claimed for loss of earnings.

The record reveals that this accident occurred shortly after noon on May 3, 1946, on the St. Bernard Highway just west of the Old Menefee Airport, at the point where the road extending to the Mississippi river and leading to the Chalmette slips intersects the highway. The 59-foot highway at this point is composed of four lanes separated by a 15-foot neutral ground, the outside lanes on each side of the highway being 12 feet wide and the inside lanes 10 feet wide. To permit easy access to the side road, the neutral ground here is cut with pavement that runs along with the rest of the paved highway for some 50 feet. Approximately a block below the scene of the accident the road makes a sharp turn, with the result that it is impossible to see in the rear-vision mirror of a vehicle proceeding toward New Orleans any vehicle approaching from the rear that has not yet negotiated this curve. One approaching from the rear, however, is not prevented from seeing [695]*695the traffic ahead for two or three blocks, because of the clear view across this curve.

The tractor-trailer unit, carrying 50 drums of aviation gasoline weighing 500 pounds each and proceeding along the western side of the St. Bernard Highway toward New Orleans in the outside lane at approximately 15 miles an hour, had passed this turn in the road and was continuing along the straight part of the highway that runs approximately 360 feet from this curve to the point where the side road to the slips intersects it. Slowing down to approximately 5 miles an hour and ascertaining from the rear-vision mirror that the road behind him was free of traffic in so far as he could tell by his mirror, the driver of the truck turned from the right or outside traffic lane across the inside lane, across the paved portion of the middle of the road that cuts through the neutral ground, across the two traffic lanes on the east side of the highway and was poised at the rise where the side road enters the highway, with the rear end of the truck and trailer projecting a few feet beyond the neutral ground into the ipside traffic lane on the west side of the highway, when the left rear end of the trailer was struck by the plaintiff’s bus, then proceeding toward New Orleans in the inside lane on the west side of the highway on one of its regular passenger trips between Violet and the Industrial Canal.

It is the contention of the plaintiff, in which he was supported by the trial judge, that the bus was traveling lawfully along the left or inside traffic lane at a rate of 30 ■ miles an hour and had given the proper-signal to pass the truck unit, then traveling-in the outside lane, when the unit, in an effort to enter the side road leading to the-Chalmette slips, suddenly and without proper warning turned to the left in front of the bus when it was only 20 or 25 feet away, this unheralded turn by the truck driver-being the cause of the accident.

The defendants contend, on the other hand, that had the position of the two-vehicles been as claimed by the plaintiff, it would have been a physical impossibility for the accident to have happened as it did, since it is revealed by the evidence that the plaintiff’s vehicle was traveling between 30' and 35 miles an hour while approaching this crossroad and the truck unit was negotiating the left turn in low gear at a rate of 5 miles an hour, under which circumstances the bus would have either avoided the accident by passing the point before the truck unit reached the left or inside traffic lane in its turn, or would have collided with the truck unit near the front end, depending upon the distance the approaching bus was from the scene at the time the-unit began to make the turn. The defendants’ version of the accident is, that at the time the truck unit began to make the turn into the side road the roadway to the rear-was free of traffic back to the point where the curve began and that the truck driver,, proceeding with due care, crossed the en— [697]*697tire width of the highway and reached the edge of the side road, almost clearing the inside lane of traffic on which the bus was traveling, when it was struck by the oncoming bus on the left rear end of the trailer.

A study and analysis of the evidence in the record unmistakably shows, in our opinion, that the accident occurred in the manner claimed by the defendants. Clearly at the speeds the two vehicles were moving at the time of the accident the on-coming bus must have been between 200 and 300 feet behind the truck at the time it began to make the turn, for the witnesses are unanimous, and are corroborated by the physical facts, that at the moment of the impact, the truck cab had travelled across the entire highway, a distance of some 50 feet, and was at the edge of the intersecting road, with the rear end of the trailer a few feet into the inside traffic lane on which the bus was traveling. Under these conditions the driver of the bus was either not looking, as he said he was, or he believed the truck was going to clear his side of the highway before the bus reached that point.

We think the testimony of the defendants’ only eyewitness, J. D. Johnson, the driver of the truck unit (his helper who was in the cab with him at the time of the accident was not produced as a witness because he could not be located), clearly supports this view.

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Bluebook (online)
41 So. 2d 505, 215 La. 692, 1949 La. LEXIS 987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/capone-v-cotton-trade-ware-houses-inc-la-1949.