Dawson v. Clark

564 So. 2d 1291, 1990 La. App. LEXIS 1605, 1990 WL 84435
CourtLouisiana Court of Appeal
DecidedJune 20, 1990
DocketNo. 21471-CA
StatusPublished
Cited by3 cases

This text of 564 So. 2d 1291 (Dawson v. Clark) 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
Dawson v. Clark, 564 So. 2d 1291, 1990 La. App. LEXIS 1605, 1990 WL 84435 (La. Ct. App. 1990).

Opinions

SEXTON, Judge.

Plaintiffs appeal a jury finding of no liability on the part of the defendants. The suit involves personal injuries arising out of a motor vehicle accident between an automobile being driven by plaintiffs’ minor child and an irrigation pipe trailer being towed by a truck driven by the employee of one of the defendants. We affirm.

On July 2, 1987, Sheila Dawson, the 15-year-old daughter of the plaintiffs, was driving her employer’s automobile in a westerly direction on U.S. Highway 165 in Morehouse Parish when she overtook a farm truck towing an irrigation pipe trailer. Immediately before the accident, the driver of the truck engaged his right turn signal, slowed his vehicle, and maneuvered the truck and trailer partially off the highway onto the shoulder in preparation for a turn into an agricultural field.

As the Dawson girl was in the process of executing a passing maneuver, her vehicle ran into the rear of the trailer. The trailer was designed and built with a front and a rear towing tongue in order to facilitate its use in the field where executing a turnaround while towing a trailer could be difficult or inconvenient. Instead, the dual tongue design made it possible to unhitch the trailer, turn the truck around, and re-hitch it at the other end in order to head in the opposite direction. When her vehicle collided with the trailer, it became impaled on the rear towing tongue.

The impact caused the front tongue of the trailer to break off while the remainder of the trailer remained embedded in the Dawson vehicle. Her vehicle spun and/or slid across the highway, coming to rest pointed in an easterly direction.

The tongue either projected through the engine compartment into the passenger compartment of the vehicle or forced a piece or pieces from the engine into the passenger compartment, striking Miss [1294]*1294Dawson. She suffered serious injuries which resulted in a difficult and complicated recuperative period.

Miss Dawson’s parents filed suit, individually and on her behalf, against the owner of the truck and trailer, the truck’s driver, and their respective insurance companies. Following a trial lasting several days, the jury returned a verdict finding no liability on the part of the defendants. Plaintiffs now appeal, raising several assignments of error.

JURY CHARGES

Plaintiffs’ first two assignments of error concern the district court’s use of one of the defendants’ requested jury instructions and its failure to use one of plaintiffs’ requested jury instructions. Defendants argue that the district court’s instructions were adequate and that we should exercise restraint in our review on this issue.

This court recently examined the applicable law on appellate review of jury instructions:

Adequate jury instructions are those that fairly and reasonably point up the issues and provide correct principles of law for the jury to apply to those issues. The trial judge is not required to give the precise instructions submitted by the litigants; he need only give instructions that properly reflect the applicable law and adequately convey the issues to the jury. Even if the requested instructions are fair statements of the law, the trial judge need not include them verbatim but must strike a fair balance so that no one issue is unduly emphasized.

Fuller v. Aircraft Insurance Group, 530 So.2d 1282, 1286 (La.App. 2d Cir.1988), writ denied, 534 So.2d 444 (La.1988), cert. denied, — U.S. -, 109 S.Ct. 1954, 104 L.Ed.2d 424 (1989) (citations omitted).

In their first assignment of error, plaintiffs argue that the district court erred when it gave the following jury charge which had been requested by the defendants:

The provisions of the Highway Regulatory Act with respect to equipment such as lights or flags on vehicles do not apply to implements of agriculture ... when they are temporarily upon the highways.

This instruction was a paraphrase of the first sentence of LSA-R.S. 32:53C. Plaintiffs contend that the jury should have been charged instead with the language in LSA-R.S. 32:313 involving the extension of a load more than four feet beyond the bed of a vehicle.1

Plaintiffs, however, failed to request this instruction in the trial court. Any trial court error to give a specific jury instruction will not be considered on appeal where that instruction is not requested below. Ealy v. Bill Allen Dodge, Inc., 466 So.2d 52 (La.App. 2d Cir.1985). Further, plaintiffs’ argument is not well taken. Defendants were entitled to have the jury instructed that there was no statutory obligation to have the irrigation pipe trailer equipped with special lighting equipment or flags.

Section 313, under the circumstances, would have been an inappropriate instruction. The record is clear that both tongues were part of the trailer and, as such, did not constitute a “load” on the trailer. “Load” means a weight or quantity of anything resting upon something else regarded as its support. LSA-R.S. 32:1(31). Accordingly, had plaintiffs specifically requested an instruction based upon section 313 and had the exemption contained in LSA-R.S. 32:53C not applied, the facts of this case clearly show that there [1295]*1295was no flagging. ‘load” which required lighting or

Notwithstanding, plaintiffs argue that the district court should have given additional instructions to the jury that defendants’ compliance with the Highway Regulatory Act or their exemption from its provisions did not, in and of itself, preclude a finding of negligence. They argue, in reliance on Cartwright v. Freeman’s Insurance Company of Newark, N.J., 254 La. 330, 223 So.2d 822 (1969), that the provisions of said Act do not affect principles relating to civil liability.

Plaintiffs thus contend that irrespective of the exemption contained in LSA-R.S. 32:53C, the question of whether defendants should have taken precautions regarding placing some sort of warning on the trailer tongue is not necessarily answered by the Act, but should be determined in accordance with general tort law.

Again, plaintiffs’ failure to request such an instruction in the trial court is fatal. Ealy v. Bill Allen Dodge, Inc., supra. With respect to the instructions themselves, we note that the district court carefully reviewed Louisiana’s Civil Code articles regarding negligence and the concept of fault. The court explained the concept of fault and illustrated the application of a standard of care with an example of an ultrahazardous activity in order to demonstrate that one’s standard of care was a flexible matter which depended on the activity in question and the risks created by the activity.

The district court also explained to the jury how one’s degree of care as an “ordinary prudent person under the same or similar circumstances” varied under the circumstances with which one is faced.

Finally, the district court reviewed several sections of the Highway Regulatory Act, including those concerning motorists executing a turn from a highway onto a private drive or roadway, executing a passing maneuver and following another vehicle at a safe distance.

Our review of the jury instructions given by the district court leads us to conclude that they fairly and reasonably pointed up the issues and provided correct principles of law for the jury to apply to those issues.

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Cite This Page — Counsel Stack

Bluebook (online)
564 So. 2d 1291, 1990 La. App. LEXIS 1605, 1990 WL 84435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dawson-v-clark-lactapp-1990.