Ebey v. Coggins

474 So. 2d 1352
CourtLouisiana Court of Appeal
DecidedAugust 21, 1985
Docket17124-CA
StatusPublished
Cited by9 cases

This text of 474 So. 2d 1352 (Ebey v. Coggins) 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
Ebey v. Coggins, 474 So. 2d 1352 (La. Ct. App. 1985).

Opinion

474 So.2d 1352 (1985)

Wilbert Glenn EBEY, Jr., Plaintiff-Appellant,
v.
Michael F. COGGINS, & Commercial Union Insurance Co., Defendants-Appellees.

No. 17124-CA.

Court of Appeal of Louisiana, Second Circuit.

August 21, 1985.

*1353 Wright, Parker & Loftin by Lowen B. Loftin, Monroe, for plaintiff-appellant.

McCleod, Swearingen, Verlander & Dollar by Elmer G. Noah, II, Monroe, for defendants-appellees.

Before HALL, FRED W. JONES, Jr. and LINDSAY, JJ.

HALL, Chief Judge.

Plaintiff, Wilbert Glenn Ebey, Jr., brought suit against defendant, Michael F. Coggins, and the defendant's automobile insurer following a collision involving plaintiff's *1354 motorcycle and defendant's automobile. The accident, which occurred at the intersection of Riverside Drive and Forsythe Avenue in Monroe in the early morning hours of October 29, 1982, left plaintiff with multiple injuries including several fractures, abrasions, and contusions, as well as an acute lumbrosacral strain. Defendant and his passenger were uninjured.

At the conclusion of the trial, the district court found both plaintiff and defendant blameworthy in causing the accident. The court calculated plaintiff's damages at $89,029.43, but reduced this amount by 65%, the percentage of negligence attributed to plaintiff. On appeal, plaintiff challenges the apportionment of negligence, but not quantum. Since the defendant likewise does not appeal quantum, that portion of the judgment is not at issue. The single issue presented on appeal is whether the trial court was clearly wrong in assigning the greater percentage of negligence to the plaintiff. Because we find the court was clearly wrong in so apportioning fault, the judgment is reversed in part and amended in regard to the proper apportionment of negligence.

Riverside Drive is a two-lane street running generally north and south, bounded on the west by a levee. Forsythe Avenue is a boulevard running generally east and west with a tree-lined median separating the opposing traffic lanes. The intersection of the two streets approximates a right angle. Two or three hundred feet north of the intersection a road runs to the northwest from Riverside, over the levee, and into a recreational area where houseboats are docked.

Prior to the accident, defendant and a friend, Brian Dean, were travelling south on Riverside. They had just come from the recreational area where defendant's parents kept a houseboat. Earlier in the evening, they had drunk "a couple of beers" as evidenced by the fact that some 45 minutes after the accident defendant's blood alcohol level was measured at .05.

Plaintiff, who had been working late at his job in a body shop, was riding his motorcycle north on Riverside. His girlfriend was following in an automobile one or more blocks behind him. Because a light rain had just begun to fall, plaintiff was wearing goggles to shield his eyes. Plaintiff might have drunk a beer earlier in the evening. At trial, he initially testified that he had quit drinking altogether several months before and thus was sure that he had nothing to drink that day, but later amended his prior statements on his own, candidly admitting that, although he was not sure, he might have drunk a single beer at the body shop where he worked. Just as candidly, plaintiff admitted to being a marijuana smoker, and further admitted that he could have possibly smoked marijuana that day, although again he simply could not recall with any certainty. Other than plaintiff's admissions of what he might have done, there was no other direct evidence in the record of plaintiff's possible intoxication.

Plaintiff and defendant gave two highly conflicting versions of how the accident occurred. Plaintiff's version was partially corroborated by the testimony of Brian Washer who was riding a motorcycle south on Riverside behind defendant's vehicle, and who stated that he was an eyewitness to the accident. Defendant's version was partially corroborated by defendant's friend and passenger, although the passenger was looking out the side window of defendant's vehicle at the instant of the collision, and thus was not an eyewitness to the collision.

According to plaintiff, he was about six or seven car-lengths from the intersection when he first noticed defendant's vehicle. Plaintiff stated that he could not initially tell if defendant's vehicle was moving or not, but that soon afterward it began to make a left turn. Plaintiff testified that his own speed at the time was 25-35 miles per hour, and that as soon as he saw defendant's lights, he immediately tried to slow his motorcycle by braking, but upon doing so felt his rear wheel start to skid. Plaintiff then shifted to a lower gear to help slow his motorcycle, and began to move as far to the right-hand portion of his lane as possible without dragging against *1355 the curb, but nevertheless was struck by the left front portion of defendant's vehicle. Defendant's vehicle was said to have turned so far as to almost completely block plaintiff's lane.

Plaintiff's witness, Brian Washer, testified that he had just turned on to Riverside from the road to the recreational area when he saw defendant's vehicle ahead of him travelling south, and saw the headlight of plaintiff's motorcycle coming toward them. Washer corroborated plaintiff's version of the accident by stating that defendant had pulled out in front of plaintiff's motorcycle and had almost completed a left turn when the collision occurred. Washer's testimony also corroborated plaintiff's to the extent that plaintiff's headlight was on prior to the accident. Plaintiff had testified that he was sure his headlight, which was broken in the collision, was on prior to the accident because the light was wired to the motorcycle's ignition switch; if the motorcycle was running the light was burning.

According to defendant's version of the accident, just before the collision defendant had put on his blinker and was coming to a halt, preparing to turn left. Defendant estimated his speed at 3 to 5 miles per hour. Defendant saw two headlights coming toward him, and decided to wait to make his left turn until after the approaching vehicle had passed by him. Defendant initially admitted that his vehicle could have been partially in the northbound lane or on the line although he did not think that had been the case. His later statements in this regard were not significantly different. The import of his testimony was that he felt that he was on his side of the road, near or on the center line, and conceivably slightly in the northbound lane due a slight curve in the road. Defendant testified that he never saw the Ebey motorcycle, and was unaware of its presence until the instant of the collision. The impact was said to have spun the defendant's vehicle to the left approximately 90 degrees so that it faced east toward Forsythe Avenue. Defendant stated that after the collision his car rolled forward 3 to 5 feet toward Forsythe, but that the rear portion of his vehicle was still in the southbound lane after his vehicle came to rest.

Defendant's testimony was partially corroborated by his passenger, Brian Dean, who also testified that defendant's vehicle was moving very slowly prior to impact preparing to make a left turn. Because Dean was looking out of the passenger's window instead of straight ahead, he did not see the motorcycle. Nor could he testify as to the exact position of the vehicle in which he was riding at the point at which the collision occurred.

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Bluebook (online)
474 So. 2d 1352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ebey-v-coggins-lactapp-1985.