Hathorn v. McKay

236 So. 2d 74, 1970 La. App. LEXIS 5319
CourtLouisiana Court of Appeal
DecidedMay 14, 1970
DocketNo. 3056
StatusPublished
Cited by5 cases

This text of 236 So. 2d 74 (Hathorn v. McKay) 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
Hathorn v. McKay, 236 So. 2d 74, 1970 La. App. LEXIS 5319 (La. Ct. App. 1970).

Opinion

TATE, Judge.

The plaintiff, Miss Hathorn, was injured as the result of a two-car collision. She was a passenger in a vehicle driven by Mrs. Gussie Edwards, which was hit by another car driven by Earl McKay, a minor. Miss Hathorn sues McKay, his father (Emmerick), their liability insurer [76]*76(State Farm), and the liability insurer (Phoenix) of the Edwards automobile.

The trial court held that McKay’s negligence was the sole proximate cause of the accident and rendered judgment against Earl McKay (by then emancipated), his father, and the liability insurer. These defendants appeal.1

This McKay-State Farm appeal urges as error the trial court’s holdings (a) that Earl McKay was negligent and (b) that Mrs. Edwards was free of negligence contributing to an accident.2 The appeal also (c) questions the award for personal injuries as excessive, as well as (d) raises an alleged procedural mistake in rendering judgment against young McKay himself.

The Negligence — Contributory Negligence Issues

The accident occurred on a rural blacktopped highway. This was during the early morning (6:30 A.M.) hours of this October morning, when still dark. No traffic other than the two vehicles was on the road.

The Edwards vehicle had backed from a driveway and then stalled, diagonally athwart the center line of the highway. Mrs. Edwards repeatedly (3-5 times) tried without success to re-start her engine — the starter whirred, but the engine did not fire.

During these attempts to re-start, Mrs. Edwards and her two passengers (the plaintiff Miss Hathorn and Mrs. Doris Lu-neau 3) saw the lights of the oncoming northbound McKay car. At the time, the front of the Edwards car, facing southeasterly, protruded about six feet into the northbound lane, in which McKay was approaching.

Mrs. Edwards switched her headlights off and on repeatedly to warn the oncoming driver of their presence in his lane. On McKay’s continued rapid unswerving approach, one of the occupants yelled, “We’d better get out of here !”

Mrs. Edwards and Mrs. Luneau were able to leave the car before the impact, but the plaintiff Miss Hathorn — who had to cross the rear seat to alight — was just descending from the left rear door when the collision occurred. She herself was severely injured. (Mrs. Luneau suffered less serious injuries when knocked to the. pavement by the backwards thrust of the Edwards Chevrolet.)

Earl McKay, 17 at the time of the accident, testified that he saw the other vehicle as he approached. However, he thought it was on its own side of the highway. He noticed the headlights being flicked on and off, but he thought it was a signal for him to dim, and he dimmed his lights in response, he says.

McKay did not realize the vehicle was stalled until too close to stop. He applied his brakes vigorously, but skidded 118 feet into the stalled car, knocking it backwards 8 feet.

Insofar as the evidence is contested, we find the trial court’s further findings, in its well-reasoned detailed opinion, to be supported by the preponderance of the evidence :

Young McKay was approaching at a highly excessive rate of speed, admitted by himself to be 70-75 mph immediately fol[77]*77lowing the accident. He had a clear view of the Edwards’ car for a least 1,000 feet before the impact, despite the long sweeping curve. He was not blinded by the diagonally pointing Edwards lights.

Under these circumstanecs, we find no error in the trial court’s conclusion that Earl McKay’s negligence was the sole proximate cause of the accident.

McKay continued at a high rate of speed towards a vehicle in his path clearly visible to him and apparently in distress, as sig-nalled by the lights being flicked on and off. He was clearly negligent in his heedless onset without slowing and putting his car under such control as to avoid the hazard ahead reasonably to be anticipated. Rowe v. Travelers Insurance Co., 253 La. 659, 219 So.2d 486; Eubanks v. Wilson, La.App. 3d Cir., 162 So.2d 842.

The cited decisions likewise support the trial court’s conclusion that neither Mrs. Edwards, the driver of the disabled vehicle, nor her passengers were negligent. Their conduct did not unreasonably endanger themselves, in view of the untravelled locality, the unexpectedness of the vehicle’s stalling and of its failure to re-start, and the short ten seconds or so during McKay’s continued onset in which they could appreciate the danger and take steps to minimize it.

The decisions are readily distinguishable upon which the defendants-appellants rely in arguing negligence on the part of Mrs. Edwards or her passengers. For instance, Vowell v. Manufacturers Cas. Ins. Co., 229 La. 798, 96 So.2d 909, concerns an unlighted parked vehicle which the oncoming driver had no reason to anticipate. Herring v. Holicer Gas. Co., La.App. 2d Cir., 22 So.2d 868, concerns a stalled truck with blinding lights on a heavily travelled highway, and no warning lights were blinked out by the driver to warn the oncoming vehicle.

Other decisions cited concerning negligence of drivers or passengers of disabled vehicles involve inaction or unreasonably little action during a longer period of time. For instance, Thibodeaux v. Jack’s Cookie Corp., La.App. 3d Cir., 169 So.2d 918, concerns an instance where a driver and a passenger were held to be negligent for failing to warn oncoming traffic and remaining in a stalled car on a main highway for fifteen minutes.

The Quantum Issue

Miss Hathorn received an award of $10,000 general damages for her personal injuries. Aside from various lacerations, this 21-year-old girl sustained compound comminuted fractures of both lower bones in her left leg, requiring prolonged treatment (nine months in a cast and on crutches), with residual pain even a year later and with probable small residual permanent limitation of motion.

The trier of fact’s large discretion in determining general damages, LSA-Civil Code Article 1934(3), Lomenick v. Schoeffler, 250 La. 259, 200 So.2d 127, Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149, was not abused, see, e. g., McMillan v. Phillips, La.App. 2d Cir., 194 So.2d 161.

Likewise, the award of $285 for future medical expenses (which the appellants suggest should instead be $170) does not appear manifestly excessive.4 The doctor estimated the lower figure as correct if only two days hospitalization at $60-75 daily were involved in removing a screw, but he also stated three-four days and a higher surgical fee would be required if general instead of local anesthesia were employed.

The Procedural Issue

The McKays and State Farm additionally raise a procedural argument, however, that the judgment against Earl McKay himself is null. They contend that Earl was nei[78]*78ther cited nor served and had made no voluntary appearance in the suit.

Until some time after this suit was filed, Earl was an unemancipated minor. Ha-thorn’s original petition names as defendant “Emmerick McKay, individually and as Administrator for the estate of his minor son, Earl Dean McKay. * * * ”

Citation, as prepared by the office of the parish clerk of court, was addressed to “Emerick Me Kay, Effie, La.” It thus did not qualify his capacity.

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Related

Crandall v. Scott
350 So. 2d 922 (Louisiana Court of Appeal, 1977)
Sykes v. Davis
289 So. 2d 199 (Louisiana Court of Appeal, 1973)
Doucet v. Standard Supply & Hardware Company
250 So. 2d 549 (Louisiana Court of Appeal, 1971)
Fairfax v. American Casualty Co. of Reading
236 So. 2d 243 (Louisiana Court of Appeal, 1970)
Luneau v. Edwards
236 So. 2d 80 (Louisiana Court of Appeal, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
236 So. 2d 74, 1970 La. App. LEXIS 5319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hathorn-v-mckay-lactapp-1970.