Herndon v. Fidelity & Casualty Co. of New York

237 So. 2d 723, 1970 La. App. LEXIS 5146
CourtLouisiana Court of Appeal
DecidedJuly 6, 1970
DocketNo. 3855
StatusPublished
Cited by1 cases

This text of 237 So. 2d 723 (Herndon v. Fidelity & Casualty Co. of New York) 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
Herndon v. Fidelity & Casualty Co. of New York, 237 So. 2d 723, 1970 La. App. LEXIS 5146 (La. Ct. App. 1970).

Opinion

SAMUEL, Judge.

This is a suit for damages resulting from an automobile accident. Plaintiffs are the driver and two guest passengers of one of the two vehicles involved and defendants are the owner-driver of the other vehicle and her liability insurer. Defendants answered, denying liability, and pleaded the doctrine of sudden emergency.

Following trial on the merits judgment was rendered in favor of the three plaintiffs and against the two defendants, in so-lido. For their respective injuries (not including special damages) the judgment awards: $3,000 to Gilbert W. Herndon, plaintiff-driver; $500 to John A. Schilleci, one of the plaintiff guest passengers; and $3,000 to Doyle A. Bridges, Jr., the other plaintiff guest passenger. Defendants have appealed. In this court they contend: (1) as the doctrine of sudden emergency is applicable, there is no liability on the part of the defendants; and, alternatively (2) the awards for personal injuries above set forth are excessive.

The accident took place at approximately 8:15 a. m. on December 16, 1965 in the northbound lanes of Airline Highway in the Parish of Jefferson just north, or on the Baton Rouge side, of that highway’s intersection with North Atlantic Street. It was raining and the roadway was wet. The plaintiff vehicle was proceeding toward Raton Rouge in one of the two lanes reserved for northbound traffic and the defendant car was traveling toward New Orleans in one of the two lanes reserved for southbound traffic. The two sets of traffic lanes were divided by a narrow neutral ground. The collision occurred when the defendant automobile, skidding out of control, crossed the neutral ground and struck the plaintiff vehicle.

Testimony relative to the manner in which the accident happened was given by three of the litigants. One of the plaintiffs, Schilleci, did not see the accident because he occupied the front seat next to the driver, Herndon, and was facing and talking to Bridges, the third occupant of the plaintiff vehicle, who was in the back seat.

The testimony of Herndon and Bridges was substantially as follows: They were driving on Airline toward Baton Rouge in the traffic lane next to the neutral ground. At the intersection of North Atlantic they stopped for a red light behind an unidentified vehicle which also was stopped in obedience to the light. When the light changed the unidentified vehicle turned left on North Atlantic and they proceeded ahead at a speed of about 5 to 8 miles per [725]*725hour. At that time the defendant vehicle, which was in one of the opposite lanes of traffic proceeding toward New Orleans at a speed of approximately 35 miles per hour, went into a skid. Fearful that the defendant car would jump the neutral ground, the plaintiff-driver attempted to move into the outside northbound lane to avoid an accident. The defendant vehicle then ran across the neutral ground and the collision occurred in the lanes reserved for northbound traffic.

The defendant-driver testified she was traveling south, toward New Orleans, on Airline at a speed of approximately 30 to 35 miles per hour in her right or outside lane of traffic. It was raining hard, visibility was poor, and her vehicle’s headlights were lit. Because the traffic light at North Atlantic was red, she slowed down as she approached the intersection. When she was about one-half block from the light it turned green and she resumed her former speed. At that time she observed a vehicle in her rear view mirror overtaking her in the left lane. As that car passed, she saw the left turning vehicle in the opposite lane, which had been stopped at the light ahead of the plaintiff car, cross her path of travel in the southbound lanes of Airline. She put on her brakes about one and one-half to two car lengths from the intersection and pulled to the right, but realizing this would cause her to strike the left turning vehicle, swerved to the left and ran across the neutral ground, striking the plaintiff vehicle.

The trial judge found portions of the defendant-driver’s testimony unbelievable. In reasons dictated immediately following the trial he stated he was convinced she was a sufficient distance away from the intersection when the left turning vehicle was crossing so that, if she had been keeping a proper lookout and had her car under control, by proper driving she could have avoided a collision with the crossing automobile without skidding. He concluded the negligence of the defendant-driver was the sole and proximate cause of the accident. From out review of the record we agree with the finding and conclusion. The doctrine of sudden emergency cannot be invoked successfully by one whose negligence has brought about or contributed to the emergency. Pitre v. Thibodeaux, La. App., 200 So.2d 360, and cases cited therein.

With regard to quantum for personal injuries, it is now established that each case must be decided largely on the facts and circumstances surrounding the particular injuries involved and that amounts of awards in similar cases are relevant for the exclusive purpose of determining whether the award is so excessive or so inadequate as to constitute an abuse of the “much discretion” vested in the trial court. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149; Ballard v. National Indemnity Company of Omaha, Neb., 246 La. 963, 169 So.2d 64; Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127.

Schilleci, the passenger seated next to the driver, cut his knees, face and clothes with flying glass and hit his back on the door of the vehicle. The day after the accident he consulted Dr. John L. Di Leo, who cleaned the cut on his knee and applied medication and a bandage. Schille-ci complained of his back and was told to apply heat and to use a bed board. The pains persisted for several months after the accident. We are of the opinion his award of $500 is not excessive and was within the wide discretion allowed the trial court.

Herndon, the plaintiff-driver, fell against Schilleci on impact and then bounced back up. The rim of the side window was around his head and shoulders when his vehicle came to a stop. He was taken directly to a hospital where he was seen by Dr. Robert Bernhard. This doctor saw him three times thereafter as an outpatient and he received five physiotherapy treatments for injuries to the left shoulder, back of his neck and headaches. He was [726]*726later examined and treated by Dr. Myron C. Greenleaf.

Dr. Greenleaf testified he saw Herndon on December 28, 1965, twelve days after the accident, for pains in the left side and back of the head and neck, radiating into both shoulders. X-rays taken at the time were negative for fracture. Physical examination revealed moderate tenderness and spasm along the posterior cervical and trapezius region. Treatment consisted of ultra sound, muscle relaxants and analgesics. Therapy started on January 7, 1966 and continued on several occasions to April 5, 1966, with progressive improvement. The doctor recommended a cervical collar which plaintiff used for seven or eight weeks.

Herndon was treated thereafter for various respiratory ailments unrelated to the accident until April 17, 1967. However, he advised the doctor over this period that he had some increase in discomfort at the back of the neck. The doctor was unable to say whether complaints from April, 1966 through August, 1967 were due to the injury or to muscle irritation from the upper respiratory infection for which he was treated. In August, 1967 plaintiff returned with complaints of headaches. Neck x-rays were again taken. There were no changes over the previous x-rays taken in 1965.

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Bluebook (online)
237 So. 2d 723, 1970 La. App. LEXIS 5146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herndon-v-fidelity-casualty-co-of-new-york-lactapp-1970.