Dodge v. Bituminous Casualty Corporation

39 So. 2d 720, 214 La. 1031, 1949 La. LEXIS 910

• Court: Supreme Court of Louisiana
• Decided: February 14, 1949
• Docket: No. 38912.
• Status: Published

Opinions

MOISE, Justice.

This is an ex delicto action to recover property damages against the insurer of a Ford truck. Plaintiff’s car was involved in a collision about a half mile from Sunset, Parish of St. Landry, La., on December 6, 1945, at about 7 p. m., when he collided with the truck which, without flares, lights or other warning signals, was parked in the same path on the highway in which he was travelling. The petitioner alleges that he did not see the parked truck until he was right upon it and that it was dark and visibility was affected by traffic approaching from the opposite direction and he could not have possibly avoided the collision.

The defendant answered the petition and, in the alternative, charged that the plaintiff was guilty of contributory negligence. Thereafter, the defendant filed 'an exception of no cause of action, which was referred to the merits. After hearing, the district court gave judgment for the plaintiff. An appeal was taken to the Court of Appeal and with a slight adjustment the judgment was affirmed. Defendant applied for and writs were granted by this Court. The matter is now before us for review.

The exception of no cause of action filed by the defendant is re-urged here and, alternatively, on the merits and considering the evidence, defendant contends that as a matter of law plaintiff was guilty of contributory negligence and that it should have judgment, in reconvention, as prayed for against the plaintiff.

As a general rule, contributory negligence being a special defense cannot be pleaded on an exception of no cause of action, since negligence is a question of fact which must be determined by a trial on the merits. There is, however, an exception to this general rule. For example, if the inference can be drawn from the facts alleged by the plaintiff showing him to have been guilty of contributory negligence, this negligence can be determined as a matter of law 'by the judge. McMahon, Exception of No cause of Action in Louisiana, 9 T.L.R. 17, 22 (1934). The first clear rule on this subject was formulated in Gibbs v. Illinois Central R. Co., 169 La. 450, 125 So. 445. In that case the court held that an exception of no cause of action based on plaintiff’s contributory negligence should not be maintained unless the facts -alleged by the plaintiff show affirmatively that he was- guilty of negligence and that such negligence was the proximate cause of the accident. This rule .places the determination of each case on a trial on the merits rather than on paper pleadings. A decision on -the exception of no cause of aotion is not -a fair way to determine the rights of litigants, since the facts alleged in each case raise several problems materially -affecting those rights which can best be solved by the hearing of evidence in the case.

In West v. Ray, 210 La. 25, 26 So.2d 221, 224, the Court stated:

“We conclude therefore that an affirmative defense, presented through exceptions or motions tried or triable only on the face of the petition, should not be sustained unless the allegations of -the petition exclude every reasonable hypothesis other than the premise upon which the defense is based.”

The record shows that the petition as amplified by the evidence fully -embraces the charge of negligence against the defendant. The plaintiff was driving his automobile at a legal rate of speed on the paved highway, it was nighttime, his lights were burning, and he was keeping a careful lookout -ahead. The truck was stationary on the highway, without lights and without flares, as required 'by law, and was parked at an angle of about 45° on the paved highway, extending about 4 or 5 feet into the lane of traffic in which the plaintiff was travelling. The plaintiff’s' visibility was affected by the oncoming traffic with lights burning, approaching from the opposite direction and he did not see the unligbted parked truck until he was right on it and could not have avoided the collision because to swerve around the truck would have brought him head-on into an oncoming car. Mrs. Antoon, -a passenger in the oncoming car, with headlights burning, was produced as a witness. She testified that there were neither lights, flares nor signals of any kind to warn the public that the parked truck was standing on the paved highway. The defendant offered no evidence to establish his alternative defense of contributory negligence.

From a chronological study of the respective acts of the Legislature- relative to the issue of law in this litigation, we find that the Legislature in enacting into law the Rules of the Road, was trying to remedy the unsafe condition of the public highways of the State and to make them safe fo-r the public. When the supreme law-making power of the State -is legislating within constitutional limitations on the law of the road, it speaks on that subject with authority to the executive and the judicial branches of the government, as well as to the entire population of the State. Section 5 of Act No. 232 of 1926 provided that a truck standing on the roadside from one half hour after sunset to one half hour before sunrise “ * * * shall have the tail light, or a parking light mounted on the left rear fender, burning at all times.” This Act was repealed, insofar as its provisions conflicted therewith by Act. No. 296 of 1928. In this latter Act the Rules of the Road were assembled under Title II. Section 50 “Required Lighting Equipment,” mentions the period of time from one half hour after sunset to one half hour before sunrise, and specifies “lighted front and rear lamps or reflectors”. However, no mention is made of a stopped or parked vehicle except in Section 26, which clearly covered stopping during daylight hours only. Act No. 21 of 1932, which repealed the 1928 Act but includes many provisions of the repealed Act verbatim, remedied this condition. Section 26 of Act No. 296 of 1928 became Rule 15, § 3 of the 1932 Act, with the following modifications: To subdivision (a) was added the proviso that if a vehicle were left parked during the hours of darkness, there should be displayed thereon appropriate signal lights sufficient to warn approaching traffic; and then comes a most pertinent provision fitting with plastic adaptation the Rule of the law for the road, which must be given great weight in a determination of responsibilities for an accident. To subdivision (c) was added the following: “* * * it shall be the duty of the owner or driver of any such vehicle to remove the same as soon as possible and until removed to protect traffic from same at his responsibility.” Act No. 21 of 1932 was repealed by Highway Regulatory Act No. 286 of 1938. This Act parallels the former law and Rule 15 remains the same except for some few minor details. Since the Act of 1938, no subsequent amendment has affected the potency of Rule 15.

In the instant case the driver of the parked truck failed to comply with the above quoted law enacted as a Rule of the Road. The responsibility to protect traffic on the road is fixed by statute. The liability for any injury or damage is therefore upon the defendant.

We have observed that heretofore, in sustaining an exception of no cause of action, it appears that the Court did not consider this Rule 15, in certain collision cases.

In addition to the above, Act No. 164 of 1936, amended by Act No. 215 of 1942, requires that trucks on the highways are to be equipped with portable flares and the manner in which said flares are to be displayed is therein set forth. The flares are to be visible for a distance of five hundred feet.

Where there is no law on a subject the court may adopt theoretical standards from common sense experience for the insuring of the safety of the road, but all must be tested by concrete factors — the law and the evidence. The letter of the law must not be disregarded under the pretext of-pursuing its spirit.

It is our conclusion that the evidence herein affirmatively shows that the defendant was guilty of negligence and that such negligence was the proximate cause of the collision.

For the reasons assigned, the writ of certiorari is recalled and the judgment of the Count of Appeal is affirmed at defendant’s costs.

HAMITER, J., concurs in the decree. O’NIELL, C. J., does not take part.