Clark v. Tolbert

134 So. 2d 605, 1961 La. App. LEXIS 1440
CourtLouisiana Court of Appeal
DecidedOctober 26, 1961
DocketNo. 9567
StatusPublished
Cited by2 cases

This text of 134 So. 2d 605 (Clark v. Tolbert) 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
Clark v. Tolbert, 134 So. 2d 605, 1961 La. App. LEXIS 1440 (La. Ct. App. 1961).

Opinion

BOLIN, Judge.

This is a suit by plaintiffs, husband and wife, against defendants for property damage and personal injuries arising out of a collision between the automobile owned and operated by plaintiff-husband and the automobile owned by defendants, Joy L. and Aaron J. Tolbert, and insured by All State Insurance Company. Mrs. Clark sued for $15,000 for pain and suffering; $10,000 for future pain and suffering; $10,-000 for shock, anxiety, embarrassment, and mental anguish; and $10,000 for permanent disability; and Mr. Clark for certain items of property damage and medical expenses. From a judgment of $3,500 for personal injury in favor of Mrs. Clark, and $290.89 in favor of Mr. Clark for community expenses, defendants have appealed. Plaintiffs have answered the appeal, asking for an increase in both awards.

The pleadings and testimony disclose that at the time of the accident, Joy Lasyone Tolbert and Aaron J. Tolbert, husband and wife, resided on the north side of Highway 80, about five or six miles east of Bossier City, Louisiana; which road is a four lane highway at this point with a neutral ground of some 75 or 100 feet between the east and west lanes of traffic. The defendants owned and operated a cafe in the Village of Haughton, Louisiana, some six or seven miles east of the point of collision. The accident happened about 10:00 o’clock at night on October 28, 1959, as Mrs. Tolbert was returning home from her restaurant.

Defendant’s version of the accident is shown by the testimony of Mrs. Tolbert who said she was some five or six feet east of her driveway which leads off Highway 80, when the left rear of her car was [607]*607struck by plaintiffs’ vehicle. She further testified she proceeded on some several feet west of the driveway and parked on the shoulder of the road on the north side of the westbound lane of traffic. She said she saw the headlights of the plaintiffs’ car following her and thought she would have time to make the right turn into the driveway leading to her home; that she did not have automatic directional signal lights but did give a hand signal of her intention to make the right turn.

Plaintiffs, on the other hand, allege and testify that plaintiffs’ car, being driven by Mr. Clark with his wife sitting to his right on the front seat, was following defendants’ car and noticed its lights some 200 yards ahead. Mr. Clark testified when he first saw defendants’ automobile, he was unable to tell whether it was moving or stationary but that, as he came to within approximately 50 yards of same, his wife remarked to him that defendants’ car was being backed out into the road and that he, Mr. Clark, replied, “I believe it is.” Whereupon, he applied his brakes and began to pull his car over to the left for the purpose of avoiding a collision. He further testified that at the time he was driving some 45 or 50 miles per hour; that the brake mechanism and steering gear on his automobile were in good shape; that he continued to pull his car over to the left, into the inside or passing lane of traffic, until he almost reached the shoulder on the left side of the inside lane of traffic, and had practically stopped when defendant continued to back her car; that defendants’ vehicle struck plaintiffs’ car just behind the right door, knocking the rear end of plaintiffs’ vehicle completely off the pavement on to the shoulder of the inside left lane.

Both Mr. and Mrs. Clark contended the two cars came to rest with plaintiffs’ right front wheel on the edge of the pavement and the remainder thereof at an angle on the shoulder of the road, with the right rear wheel some two or three feet on the shoulder of the road and with the rear end of defendants’ car resting against plaintiffs’ car at the point of impact. Mrs. Clark was knocked from plaintiffs’ car and fell on the ground with part of her body extending under her car on the grass, or shoulder, and her head on the pavement. Before her husband could get out of his car on the left-hand side and go around to the right-hand side, and while thus trapped under her car, Mrs. Clark contended Mrs. Tolbert immediately pulled her car away from the point of impact, crossed both lanes of traffic to the shoulder on the north side of the outside lane and parked her car almost wholly on the shoulder of the road some five or six feet west of the west side of her driveway to her home.

After a thorough discussion of the physical evidence and the testimony of the witnesses, the trial judge concluded in a written opinion:

“The evidence clearly indicates that the point of impact occurred at the edge of the pavement in the left lane, just before the back end of plaintiffs’ car went off of the concrete on to the shoulder of the road. * * * There is just one of two possible explanations of this accident, from the pictures and physical evidence, and that is that defendant, Mrs. Tolbert, was, in fact backing out into the highway clear across both lanes of traffic, or else that she made a wide sweep or turn so that she could approach her driveway at a 90 degree angle and, in either event, her maneuver would be the direct and proximate cause of the accident.”

At this point, we deem it proper to note that Judge C. A. Barnett heard the evidence and rendered the opinion while Judge O. E. Price signed the judgment.

Our reading of the record on appeal convinces us that the trial judge was correct both in his findings of fact and his conclusions of law with reference to negligence and liability. If Mrs. Tolbert was backing her vehicle across both lanes of traffic, the general rule setting forth the care required [608]*608in backing would apply. This general rule was stated in Neyrey v. Maillet, La.App. Orleans, 1945, 21 So.2d 158, 164, to be:

“The law of the case with reference to the precautions a motorist must take when backing his vehicle is clear. It is, of course,, not negligence to back a car. See Hahn v. P. Graham & Co., 148 La. 55, 86 So. 651; Huddy’s Encyclopedia of Autombile Law, Vols. III-IV, Section 133, pp. 218-220. However, a motorist is charged with the duty of exercising ordinary care to see that the maneuver will not injure the persons or property of others.
By ordinary care, we mean the degree of caution which would be observed by reasonably prudent persons under similar conditions. And no hard and fast rule can be laid down in matters of this sort for, in common with all actions based upon negligence, each case must stand upon its own particular facts and circumstances.”

See also Valentine v. J. D. Marcom Service and Supply Co., La.App. 2 Cir., 1961, 128 So.2d 218, affirmed on rehearing, and authorities contained therein; and also Broussard v. American Insurance Co., La. App. 3 Cir., 1961, 127 So.2d 587.

We believe that in view of the duty owed by one backing a vehicle as outlined in the authorities cited, Mrs. Tolbert was negligent if she did, indeed back her automobile across both westbound lanes of trafiic at night into plaintiffs’ car.

On the other hand, if the defendant-driver swerved into the left lane while executing a right turn into the driveway, such action also constituted negligence. Our conclusion on this point is amply supported under the principle enunciated in Thomas v. Attison, La.App. 2 Cir., 1960, 125 So.2d 511, 513, as:

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Bluebook (online)
134 So. 2d 605, 1961 La. App. LEXIS 1440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-tolbert-lactapp-1961.