Elliott v. US Fidelity & Guar. Co.

568 So. 2d 155, 1990 WL 140227
CourtLouisiana Court of Appeal
DecidedSeptember 26, 1990
Docket21771-CA
StatusPublished
Cited by12 cases

This text of 568 So. 2d 155 (Elliott v. US Fidelity & Guar. Co.) 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
Elliott v. US Fidelity & Guar. Co., 568 So. 2d 155, 1990 WL 140227 (La. Ct. App. 1990).

Opinion

568 So.2d 155 (1990)

Donald ELLIOTT, Plaintiff/Appellee,
v.
UNITED STATES FIDELITY & GUARANTY COMPANY, et al., Defendant/Appellant.

No. 21771-CA.

Court of Appeal of Louisiana, Second Circuit.

September 26, 1990.

*156 Bennie Mac Farrar, Monroe, for plaintiff/appellee.

Theus, Grisham, Davis & Leigh by Charles H. Heck, Monroe, for defendant/appellant.

Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.

FRED W. JONES, Jr., Judge.

Defendants, James Crews and his insurer, United States Fidelity & Guaranty Company (USF & G), appealed the judgment of the trial court in favor of plaintiff, Donald Elliott, in plaintiff's action for personal injury damages sustained in a collision between Crews' automobile and plaintiff's motorcycle.

Defendants assert the following assignments of error:

1) The trial court erred in failing to find plaintiff contributorily negligent so as to totally bar his recovery;
2) The trial court erred in finding defendant negligent;
3) The trial court erred in electing after trial to visit the accident site to perform tests, measurements and make visual observations without the knowledge, consent or presence of the attorneys and to rely upon those tests and observations in deciding the case;
4) The trial court erred in awarding excessive damages;
5) The trial court erred in permitting testimony at trial as to the issuance of a traffic ticket without proof or indication of a plea of guilty to or conviction of any traffic offense;
6) The trial court erred in utilizing judicial notice to resolve a disputed issue of fact;
7) The trial court erred in failing to apply the principle falsus in uno, falsus in omnibus to plaintiff's testimony; and,
8) The trial court erred in failing to find the accident occurred outside plaintiff's proper lane of travel, thus raising a presumption of fault on his part.

Factual Context

On June 29, 1979 plaintiff was riding his KZ 900 Kawasaki motorcycle in a westerly direction on Park Avenue in Monroe. Defendant, *157 Crews, and his passenger, Deborah Lewis, were proceeding south on North 12th Street in a 1979 Cadillac. At the intersection of those two streets, Crews allegedly came to a stop at the stop sign, looked both ways, determined the intersection was clear and started across. Plaintiffs motorcycle struck Crews' Cadillac behind its rear wheel with the force of the collision causing plaintiff to be thrown off the motorcycle, over the back of the car and onto the pavement.

On June 4, 1980 plaintiff filed this action for personal injury damages naming as defendants, Crews and his insurer, USF & G. Plaintiff alleged that Crews had attempted to cross Park Avenue in front of him without any warning whatsoever, so that he was unable to avoid hitting the Cadillac. Plaintiff alleged that Crews' negligence was the sole cause of the collision and, that as a result of the accident, he suffered the total loss of his motorcycle and loss of income. He also sustained serious injuries causing him severe pain and mental anguish, which required several hospitalizations. Future surgery is a possibility. Plaintiff further alleged that as a result of his injuries he was no longer able to seek the same employment he was seeking at the time of the accident.

In their general denial answer, defendants denied the accident was the result of any act of neglect on the part of Crews. Alternatively, defendants affirmatively asserted that plaintiff was contributorily negligent, sufficient to totally bar recovery by him, in that he was operating his motorcycle in a reckless and careless manner, failed to have and maintain a proper lookout, was speeding and failed to avoid the accident despite ample time and opportunity to do so.

At the trial on the merits, the testimony of plaintiff differed from that of Crews, Lewis and two disinterested witnesses. Although plaintiff admitted his motorcycle was capable of speeds in excess of 100 miles per hour, he testified that he was traveling approximately 30-35 miles per hour on his way home from work when he approached and passed a jeep which was traveling about id miles per hour. Approximately one and one-half miles down the road plaintiff approached the intersection of North 12th street, his view of which was partially obstructed by tall thick hedges. Plaintiff first viewed Crews' vehicle crossing the intersection when it was approximately 20-30 feet away. Plaintiff stated he did not have enough time to put on his brakes or to take any type of evasive action. Plaintiff estimated the point of impact to be somewhere between the center of his own lane and the center line. Plaintiff testified that as a result of the accident he experienced severe difficulties with his knee which required surgery. Plaintiff admitted he had injured his knee in another motorcycle accident in 1974 but denied any long-term difficulties from this injury.

The testimony of Crews and Lewis was that Crews came to a complete stop at the intersection, looked both ways and determined that the intersection was clear prior to pulling out. However, their view to the east was limited to 150 feet due to a curve in Park Avenue. When the Cadillac was well into the intersection, both front wheels having entered the swell on the other side of the road, Crews and Lewis saw the motorcycle approaching. They characterized their observation of plaintiff as "just like a flash" and stated he was traveling at a high rate of speed. The force of the collision turned Crews' car around nearly 90 degrees in the roadway. Minutes later the Monroe city police arrived and gave Crews a citation for failure to yield.

Two disinterested witnesses, George Carso and Bart Ackel, were also traveling in a westerly direction on Park Avenue in a jeep at approximately 30-35 miles per hour when they were passed by plaintiff. The witnesses testified they were familiar with motorcycles and that plaintiff was traveling at a rate of speed which they estimated to be approximately 90-100 miles per hour. After being passed by plaintiff, the witnesses observed him having to swerve around to "just miss" a garbage truck after the garbage truck pulled out of an intersecting street, Pargoud, onto Park Avenue. The garbage truck obscured the witnesses' vision of plaintiff momentarily until *158 they rounded a curve in the road and observed the accident site.

In written reasons for judgment filed on June 10, 1986 the trial court found in favor of plaintiff and awarded him $48,174.55 in damages. The trial court held that Crews was negligent in failing to see what he should have seen and in failing to yield the right-of-way at a stop sign. Although the trial court accepted the testimony of Carso and Ackel regarding plaintiff's excessive speed at the time he passed their jeep, based upon calculations which the trial court made when it visited the scene of the accident after trial, the court concluded that at the time of the accident plaintiff was "more than likely traveling at a reasonable speed".

We note, first, that the trial court was in error in visiting the accident site to perform tests, measurements and make visual observations without the knowledge, consent or presence of the attorneys and to rely upon these tests and observations in deciding the case. Any factual insight purportedly gained through these observations and calculations are not the type of facts of which judicial notice may be taken.

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Cite This Page — Counsel Stack

Bluebook (online)
568 So. 2d 155, 1990 WL 140227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elliott-v-us-fidelity-guar-co-lactapp-1990.