Hebert v. Domingue

473 So. 2d 120
CourtLouisiana Court of Appeal
DecidedJune 26, 1985
Docket84-561
StatusPublished
Cited by7 cases

This text of 473 So. 2d 120 (Hebert v. Domingue) 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
Hebert v. Domingue, 473 So. 2d 120 (La. Ct. App. 1985).

Opinion

473 So.2d 120 (1985)

Sharon HEBERT, Plaintiff-Appellant,
v.
Elia DOMINGUE and Lumbermen's Mutual Casualty Company, Defendants-Appellees.

No. 84-561.

Court of Appeal of Louisiana, Third Circuit.

June 26, 1985.
Rehearing Denied August 6, 1985.

*121 Gary Steckler by Steve Santillo, Lafayette, for plaintiff-appellant.

Roy and Hattan, L. Lane Roy, Lafayette, for defendants-appellees.

Before FORET, LABORDE and YELVERTON, JJ.

LABORDE, Judge.

This personal injury suit was tried before a jury in the Fifteenth Judicial District Court for the Parish of Lafayette. The jury found that the negligence of defendant Elia Domingue was a legal cause of the accident and that the degree of her negligence was in the amount of 70%. The jury further found that plaintiff Sharon Hebert was also negligent and apportioned the degree of her negligence at 30%. The jury found plaintiff's damages totalled $18,700.00. Thereafter, the trial judge signed a judgment reducing the award to plaintiff by 30%, resulting in a total award of $13,090.00. Plaintiff filed a petition for appeal alleging three errors. We amend and, as amended, we affirm.

FACTS

An automobile accident between plaintiff and defendant occurred at about 6:00 p.m. on February 1, 1982. The point of the accident was on U.S. Highway 167, the Lafayette to Abbeville highway, just south of its intersection with La. Highway 733.

Plaintiff Sharon Hebert and her three children were traveling on Highway 167 South, toward Abbeville, in a Toyota Stationwagon. Defendant Elia Domingue was driving a Chevrolet Monte Carlo in the opposite direction on Highway 167 North, toward Lafayette.

Some of Ms. Domingue's children own homes along Highway 167 in the area just south of Highway 733. At the time of the accident, she had just left her son's home and was heading toward the home of her daughter, just about 400 to 500 feet away. Ms. Domingue left the driveway of her son's home. She turned north on Highway 167 toward her daughter's home. She was followed by her granddaughter, Carolyn Scott. After Ms. Domingue pulled onto the highway, Ms. Scott yielded to an oncoming vehicle, then she also pulled onto the highway *122 and proceeded in the same direction as both Ms. Domingue and the vehicle she yielded to. Ms. Domingue drove her car several hundred feet down the highway and then began to search for her daughter's driveway.

Being February, it was dark at 6:00 p.m. and this area of Highway 167 had no artificial street lighting of any kind. Ms. Domingue admitted at trial that it was very difficult to locate her daughter's driveway. At the time of the accident, ditches lined both sides of Highway 167 and there was nothing (such as reflectors) to indicate the location of the driveway. Therefore, Ms. Domingue had to be very attentive in her search for the driveway.

Before entering the driveway, Ms. Domingue came to a complete stop. Her testimony was as follows:

"Q. Okay. So, you said you stopped and you made a left turn and there was nothing in front of you to obstruct your vision?
A. No.
Q. When you hit that car, where were you looking?
A. I was looking for the driveway and when I curved, I hit her on the shoulder of the road ...
....
Q. So, as you were turning, you were looking into the driveway?
A. Yes, I was watching to turn into the driveway.
Q. So, that's where your eyes were, at the driveway?
A. Yes."

To her surprise, she collided with something on the shoulder of the highway. It was Ms. Hebert's car.

Ms. Hebert, traveling south on Highway 167, saw Ms. Domingue's car come across the centerline. Ms. Hebert, veered onto the shoulder to avoid a collision. Then, just as Ms. Hebert was to pass Ms. Domingue, Ms. Domingue turned into Ms. Hebert. The resulting collision forced Ms. Hebert's car off the road and into the ditch adjacent to the shoulder of the southbound lane of the highway.

Subsequently, Ms. Hebert filed the suit which gave rise to this appeal. She alleged that the collision was caused solely by the negligent acts of Ms. Domingue. Ms. Domingue, in the answer, denied plaintiff's allegations and further alleged that Ms. Hebert was comparatively negligent for operating her, Ms. Hebert's, vehicle at night without the use of headlights.

After the trial, the jury found that both Ms. Domingue and Ms. Hebert was negligent. The degree of negligence was apportioned 70% to Ms. Domingue and 30% to Ms. Hebert.

Ms. Hebert subsequently filed motions for Judgment Notwithstanding the Verdict, New Trial, and, alternatively, Additur; all of which were denied by the trial judge. Then Ms. Hebert filed this appeal alleging the following assignments of error:

1) That the jury's verdict on the issue of liability, in which they found the plaintiff to be negligent in the amount of 30%, is "manifestly erroneous" and clearly contrary to the facts and law presented herein, in that said facts can only support the conclusion that the negligence of the defendant-driver was the sole legal cause of this collision, and the damages suffered by the plaintiff as a result thereof.
2) That counsel for the defendant made several improper remarks during his closing argument which were inflammatory and unsupported by the evidence, and said remarks had a prejudicial effect on the appellant's ability to recover adequate compensatory damages.
3) That the jury committed an abuse of discretion on the issue of the quantum of damages by making an award to the plaintiff in the amount of $18,700.00, said verdict on quantum being inadequate compensation for the damages suffered by the plaintiff, said damages having been proved by a preponderance of the evidence presented to the jury.

*123 NEGLIGENCE

Ms. Hebert contends that there is no reasonable evidentiary basis for the jury's findings of fact which caused them to declare that her "negligence" was a 30% cause of the accident.

Ms. Hebert asserts that the jury based her negligence on their conclusion that she was driving at night without having turned on her headlights. Although the jury did not state the basis for which it found Ms. Hebert 30% negligent, we find that the only basis supported by the record upon which the jury could have reasonably concluded that Ms. Hebert was negligent involved the question of whether, at the time of the accident, Ms. Hebert was driving her car without the headlights being on.

Ms. Domingue's testimony concerning the issue of the headlights was as follows:

"Q. You made a left turn into Mrs. Hebert?
A. Yes.
Q. And you hit her somewhere near the shoulder of the road on the other side?
A. I hit her—when I turned, the corner of my car hit her—hit something on the shoulder of the road. I didn't know what it was. There wasn't—I didn't see no lights, nothing. I didn't know what it was.
Q. Okay, but you don't know if she had her lights on or off at that time?
A. Well, at that time, I don't think she had her lights. I would have seen the lights.
Q. Okay. Are you saying that she did not have her lights on?
A. No, she did not have no lights.
Q. You're saying she did not have her lights on?

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Bluebook (online)
473 So. 2d 120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hebert-v-domingue-lactapp-1985.