Cory v. Employers Mutual Liability Insurance Co. of Wisconsin

267 So. 2d 761, 1972 La. App. LEXIS 5800
CourtLouisiana Court of Appeal
DecidedSeptember 12, 1972
DocketNo. 11914
StatusPublished
Cited by6 cases

This text of 267 So. 2d 761 (Cory v. Employers Mutual Liability Insurance Co. of Wisconsin) 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
Cory v. Employers Mutual Liability Insurance Co. of Wisconsin, 267 So. 2d 761, 1972 La. App. LEXIS 5800 (La. Ct. App. 1972).

Opinion

HALL, Judge.

Plaintiff, Beverly Leigh Cory, filed suit against Harvey P. Hubbell and his liability insurer, Employers Mutual Liability Insurance Company, seeking recovery of damages for injuries sustained by her in a collision involving the Hubbell automobile and an automobile owned and operated by Roger T. Evans, in which she was riding as a guest passenger. Hubbell and Employers Mutual answered denying liability and by way of third party petition sought recovery against Roger T. Evans for damages to the Hubbell automobile, and, alternatively, for one-half (J4) of any amount for which they may be cast in favor of plaintiff. Plaintiff then amended her petition to name Roger T. Evans as an additional defendant. Evans answered denying liability and by third party petition sought recovery from Hubbell and Employers Mutual for damages to his automobile and, alternatively, for one-half (i/£) of any amount he might be cast in favor of plaintiff.

After trial on the merits, the district court in a written opinion, held that Hubbell was free from negligence and that the sole, proximate cause of the accident was the negligence of Evans. Accordingly, judgment was rendered in favor of plaintiff against Evans in the amount of $2,207.57; [763]*763in favor of Employers Mutual against Evans in the amount of $1,334.37; in favor of Employers Mutual and Hubbell rejecting the demands of plaintiff; and in favor of Hubbell and Employers Mutual rejecting the third party demands of Evans. From this judgment Evans perfected a suspensive appeal. Plaintiff perfected a devolutive appeal. Hubbell and Employers Mutual neither appealed nor answered the appeals taken by the other parties.

The accident occurred on March 28, 1971, between 9:30 and 10:00 p. m., on Youree Drive Extension in Shreveport. Youree Drive Extension is a four-lane thoroughfare running generally north and south with a median or neutral ground between the northbound and southbound lanes.

Hubbell and his wife were traveling south in their 1970 Buick Electra automobile, when they noticed an automobile stopped in the southbound, inside lane with the driver in apparent distress. Wishing to render assistance, Hubbell continued south to the next cut-through in the median at a cross street, turned left and drove back in a northerly direction. He drove north past the stranded motorist to the first cut in the median where he intended to turn through the cut in the median and back to his left to re-enter the southbound traffic lanes. This particular cut in the median is located opposite an access road entering Youree Drive Extension from the east and the obvious purpose of the cut in the median is to allow southbound traffic on Youree Drive Extension to turn into the access road and to allow traffic exiting from the access road to cross through and turn south.

Youree Drive Extension at the point of the cut in the median is practically straight and visibility is unobstructed for a substantial distance to the south. There is an upright pole with a crossarm supporting two vapor lights in the center of the median about fifteen or twenty feet south of the cut in the median and other similar lights fifty to one hundred yards apart along the median. At the time of the accident, it was raining or had been raining and the street was wet.

Hubbell turned into the cut in the median and stopped to allow southbound traffic to clear. Some ten to fourteen cars passed in front of him going south and one passed behind him going north. Both his front and rear lights were burning and he had his left-turn signal light on. His front bumper was near the western edge of the cut in the median which was approximately eight feet wide and, therefore, his automobile protruded approximately ten feet into the northbound lane of travel, blocking most of the inside lane but leaving sufficient distance behind his automobile for an automobile to pass in the outside lane. He remained in this position for some twenty to fifty seconds when the Evans vehicle proceeding north in the inside lane struck the Hubbell automobile on the left rear side.

Evans testified that he did not see the Hubbell automobile until he was approximately thirty-five to forty feet from it. He also testified he did not remember any cars proceeding in his lane ahead of him prior to the accident.

The trial judge held Hubbell was not negligent in attempting to turn through the crossover in the median, as the cut-through was there for the purpose of permitting people to cross over to and from the southbound lanes of traffic, particularly for traffic coming to and from the access road to the east. The trial judge further held that the sole and proximate cause of the accident was the failure of Evans to see the Hubbell automobile in sufficient time to stop before striking it, or in traveling at such a speed and not having his automobile under such control that he could stop before striking it.

We entirely agree with the trial judge’s findings of fact and with his conclusion that Evans was negligent. There is some dispute as to whether it was actually raining at the time of the accident, but even if it was, there was nothing to obstruct Evans’ view as he proceeded north and he [764]*764should have observed the Hubbell vehicle in a stopped position in sufficient time to slow down, bring his automobile to a stop or pass to the rear of the Hubbell automobile. Hubbell had his front and rear lights on and also his blinker light. The vapor lights in the median afforded additional illumination. By Evans’ own testimony, it must be concluded that he was not keeping a proper lookout. He was not confronted with a sudden emergency because the Hubbell automobile had been in this position within his plain view for at least half a minute. Evans was confronted with an emergency when he first noticed the Hubbell automobile but he contributed to the emergency himself by not keeping a proper lookout.

The issue of Hubbeil’s negligence presents a more difficult question for decision. Plaintiff argues that Hubbell was making a u-turn, a very dangerous maneuver, and that he was negligent in stopping with his automobile blocking the inside lane of northbound travel on a main thoroughfare, particularly at night and in rainy weather. On the other hand, Hubbell and his insurer argue that he was making a turn through a cut in the median as he had a right to do and that he was doing all he could reasonably do in remaining stopped for southbound traffic to clear. Hubbell and his insurer cite Allen v. Baucum, 218 So.2d 662 (La. App. 4th Cir. 1969) and Smith v. Glass, 202 So.2d 367 (La.App. 1st Cir. 1967) as authority for the proposition that it is not negligence for a driver to stop his vehicle in a cut in the neutral ground with the rear of the vehicle blocking the lane nearest the neutral ground. In both the Alien and Smith cases, motorists were crossing a four-lane divided highway on an intersecting street at a true intersection. In both cases the motorist reached the neutral ground and stopped to allow traffic to clear. In the Allen case, the rear of the stopped vehicle protruded approximately four feet into the lane nearer the neutral ground. In Smith, the rear of the stopped automobile extended two or three feet into the inside lane nearest the neutral ground.

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Bluebook (online)
267 So. 2d 761, 1972 La. App. LEXIS 5800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cory-v-employers-mutual-liability-insurance-co-of-wisconsin-lactapp-1972.