Carr v. Fidelity & Casualty Co. of New York

248 So. 2d 917, 1971 La. App. LEXIS 6058
CourtLouisiana Court of Appeal
DecidedMay 28, 1971
DocketNo. 3410
StatusPublished
Cited by7 cases

This text of 248 So. 2d 917 (Carr 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
Carr v. Fidelity & Casualty Co. of New York, 248 So. 2d 917, 1971 La. App. LEXIS 6058 (La. Ct. App. 1971).

Opinion

MILLER, Judge.

The jury awarded damages on a finding that defendant’s insured motorist negligently turned left after the oncoming plaintiff motorist pre-empted the intersection. The record supports this finding.

[918]*918The tutrix of Katherine Carr seeks damages for the personal injuries suffered by her minor daughter, herein referred to as plaintiff.

At about 5:15 p. m. on January 27, 1968, the northbound plaintiff had a green light to proceed into the intersection of Union Street and Cresswell Lane in the City of Opelousas. The north south Union Street is paved to a width of only 18 feet. The southbound insured defendant driver also had a green light and signaled his left turn with his flashing turn indicator. Defendant’s insured did not see the oncoming northbound vehicle and assumed, without checking to see, that his left turn was protected with a green arrow facing southbound traffic and a red light holding back northbound traffic.

The traffic signal was set so that when northbound traffic received the green signal, the left turn arrow which shows for 9 to 10 seconds and which protects left turning southbound motorists, changes to indicate that the left turn is no longer protected. After the green arrow is extinguished, the green light allowing southbound traffic to continue straight south stays on for an additional 30 seconds.

Defendant’s insured had stopped behind two other southbound vehicles. When the green arrow and green lights appeared for southbound traffic, the lead car turned left, the second car proceeded straight and defendant’s insured slowly moved forward. As he reached the intersection he hesitated, then made the left turn and was immediately struck.

Plaintiff was driving north at a speed of 30 mph in a 35 mph zone and the traffic signal turned green for northbound traffic when she was approximately 180 feet from the intersection. There was no northbound traffic between her vehicle and the traffic signal. When plaintiff saw defendant’s insured hesitate or stop in his proper southbound lane, she concluded that the southbound motorist recognized her right-of-way and plaintiff continued into the intersection. The left turn was commenced just as plaintiff reached the intersection. The left front of plaintiff’s Edsel struck the right front corner of defendant’s insured Pontiac when it had crossed from one to four feet into the northbound traffic lane.

The cases are legion which hold that before making a left turn the driver of an automobile must ascertain that he may do so safely. Washington Fire & Marine Ins. Co. v. Firemen’s Ins. Co., 232 La. 379, 94 So.2d 295 (1957). Defendant’s insured failed to observe this law.

Defendant appellant contends that the facts of this case are similar to those found in Potts v. United States Fidelity and Guaranty Company, 135 So.2d 77 (La.App.2d Cir. 1961) and Ortego v. Plumbar, 238 So.2d 376 (La.App.3d Cir. 1970). These cases are distinguished on the facts.

Appellant here contends that the northbound plaintiff saw that defendant’s insured was making the left turn at the same time that she saw his left turn signal, and that this occurred when she was some 180 feet from the intersection. The evidence does not support this argument. On the contrary, the evidence preponderates that defendant’s insured hesitated or stopped before starting the left turn, which indicated that he was yielding to plaintiff’s right-of-way, and that the turn was not commenced until plaintiff reached the intersection. Defendant’s insured did not see plaintiff until a moment before impact. He did not know whether or not the green arrow was on when he made his left turn. He only assumed that it was.

Appellant contends that the jury’s award of $30,000 is manifestly excessive and should be reduced to $8,000. The award is high. Nevertheless, the award cannot be reduced unless an examination of the facts reveals a clear abuse of the discretion vested in the trial judge or jury. Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967).

[919]*919At the time of the accident, Katherine Carr was 16 years old and was a junior in high school. She was one of the best students scholastically and in extra-curricular school activities. As a result of the accident, she was hospitalized for six days. She missed two or three weeks of school, but was able to keep up with all school work as well as extra curricular activities. Her grades did not suffer, and even improved during her senior year. Among awards earned after the accident were “hardest worker”, and “pacesetter”. She received the American Legion Award and was awarded an art scholarship from the Woman’s Club. She sang in a production called “Cajan Capers” and was a singing member of the Yamettes during both her junior and senior years. She did not miss any of the numerous Yamette performances and trips. In June or July of 1968, Katherine spent 5 days on the LSU-Baton Rouge campus taking a leadership training course. She was editor of the school annual. At the time of trial, plaintiff was a student at the University of Southwestern.

Three of Katherine’s four lower front teeth were knocked out in the accident. The fourth was loose, but the dentists attempted to save it. About 14 months later, it too had to be removed. She suffered lacerations in the mouth, one cut through the lip (no sutures) and bruises to her face, chest, trunk and legs. She suffered a fractured mandible in the area of the missing teeth. The mandible was fractured anterior to posterior, not superior to inferior. Wiring of the mandible was not required. She also suffered a myo-fascial ligamentous strain or sprain of the neck causing muscle spasm and pain complaints. Traction and/or neck braces were not used.

She developed traumatic pleurisy which was quickly cured. She had crying spells and depression over the loss of teeth. She was placed on a baby food diet for some six or seven weeks.

Excepting for her dental treatment and some minor plastic surgery, plaintiff has not been treated by any physician since March 30, 1968.

Dr. Emile Ventre, physician of Ope-lousas, treated Katherine during her six day stay in the hospital. He opined that her teeth and facial injuries were the most serious and that she had no symptoms of a whiplash injury. He noted that she was in bed during his treatment and that neck complaints might not show up during bed rest.

Following discharge from the hospital, Katherine was under the care of Dr. D. J. deBlanc, physician of Opelousas. He used Chymar injections for her hematomas; antibiotics to prevent infection; codine for cough and headaches and for pain in the neck and chest; and papase to remove edema. He found muscle spasm, and diathermy treatments were given from February 3 to March 30, 1968. Dr. deBlanc has not treated plaintiff since March 30, 1968. On June 6, 1968, he discharged Katherine, but stated that he would follow her as a friend. He referred Katherine to Dr. Blaise Salatich, orthopedic surgeon of New Orleans, but never received a report from him. Dr. deBlanc found no permanent disability as of 3 or 4 months post accident (Tr. 482), but admits that Katherine was not well as of June 6, 1968.

On June 20, 1968, Dr. Tom D. Cronin, plastic surgeon of Houston, Texas, repaired a three milimeter by one milimeter pigmented scar on Katherine’s lower lip. This 30 to 40 minute procedure was performed under local anesthesia at a cost of $70 excluding hospital charges. A good result was obtained. The dentists who treated Katherine in 1969 did not notice any blemish.

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Bluebook (online)
248 So. 2d 917, 1971 La. App. LEXIS 6058, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carr-v-fidelity-casualty-co-of-new-york-lactapp-1971.