Jackson v. Scott Truck and Tractor, Inc.

736 So. 2d 987, 1999 La. App. LEXIS 1336, 1999 WL 275294
CourtLouisiana Court of Appeal
DecidedMay 5, 1999
Docket31,933-CA
StatusPublished
Cited by12 cases

This text of 736 So. 2d 987 (Jackson v. Scott Truck and Tractor, Inc.) 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
Jackson v. Scott Truck and Tractor, Inc., 736 So. 2d 987, 1999 La. App. LEXIS 1336, 1999 WL 275294 (La. Ct. App. 1999).

Opinion

736 So.2d 987 (1999)

Tracy Vinnette JACKSON, et al., Plaintiffs-Appellants,
v.
SCOTT TRUCK AND TRACTOR, INC., et al., Defendants-Appellees.

No. 31,933-CA.

Court of Appeal of Louisiana, Second Circuit.

May 5, 1999.

*989 Wright & Underwood by Bobby N. Underwood, Monroe, Counsel for Appellants.

Crawford & Anzelmo by Brian E. Crawford, K. Douglas Wheeler, Monroe, Counsel for Appellees.

Before STEWART, GASKINS and DREW, JJ.

GASKINS, Judge

The plaintiff, Tracy Vinnette Jackson, individually and on behalf of her minor daughter, Gabrielle Alicia Jackson, appeals a jury verdict finding that John K. Pittman, the driver of a truck belonging to Scott Truck and Tractor Company, was not liable in the death of Charles Jackson, Jr. For the following reasons, we affirm.

FACTS

On October 12, 1995, at approximately 7:00 p.m., Charles Jackson, Jr. was riding his bicycle east on Ticheli Road, in Monroe. He was severely vision-impaired, having only 20/200 vision, which could not be corrected. He was wearing khaki pants and a dark-colored jacket. It was dark when Mr. Jackson approached the intersection of Ticheli Road and Highway 165. The intersection was poorly illuminated. It appears that Mr. Jackson had a red light, but rode his bicycle into the intersection, against the light.

A Ford Bronco, driven by Leroy Profit, was northbound on Highway 165 and swerved in an attempt to avoid Mr. Jackson. Mr. Jackson and his bicycle collided with the side of Mr. Profit's Bronco. Mr. Profit brought his vehicle to a stop off the roadway. He and his passenger, Michael Pleasant, then ran back to the intersection to assist Mr. Jackson. A red Isuzu truck occupied by three men was northbound on Highway 165. They saw the accident and stopped to render assistance.

Ms. Alberta Brown and her daughter, Alberta Brown III, were westbound on Ticheli Road, saw the accident and stopped to render assistance. The senior Ms. Brown stationed herself on the side of the roadway to warn oncoming traffic.

A Ford F-350 one-ton truck, with dual rear wheels, owned by Scott Truck and Tractor and driven by John K. Pittman, approached the intersection, traveling north on Highway 165. Ms. Brown waved her arms to warn Mr. Pittman, but he proceeded into the intersection traveling *990 at 55-60 m.p.h. The posted speed limit was 55 m.p.h. Mr. Pittman swerved over to the left lane and struck Mr. Jackson, inflicting injuries to his chest and head which were instantly fatal.

On March 7, 1996, Mr. Jackson's widow filed suit on behalf of herself and the couple's minor daughter, Gabrielle, for damages arising from the death of Mr. Jackson. Named as defendants were Scott Truck and Tractor Company, John K. Pittman, their insurer, Audubon Indemnity Insurance Company, and Leroy Profit and his insurer, Allstate Insurance Company. All defendants requested a trial by jury. The plaintiff settled with Mr. Profit and his insurer prior to trial. The matter was tried on February 2-5, 1998.

Numerous eyewitnesses and expert witnesses testified at trial and presented conflicting views and interpretations of this accident. Some witnesses maintained that Mr. Jackson was first run over by the Bronco. Others stated that Mr. Jackson was not seriously injured by the impact with the Bronco and was attempting to rise from the roadway when he was struck and killed by Mr. Pittman. Several expert witnesses concluded that the decedent was killed when he was struck by Mr. Pittman's vehicle. One expert concluded that the vehicle driven by Mr. Pittman did not inflict the fatal injuries to Mr. Jackson. Some experts concluded that due to the poor lighting conditions and the distraction at the intersection, the accident was unavoidable. Other experts found that, even though Mr. Pittman did not have enough time to stop his vehicle after observing Mr. Jackson, he did have enough time to swerve to avoid hitting him.

At the close of the proceedings, the jury determined that Mr. Pittman was not guilty of negligence or fault that was a proximate cause of the death of Mr. Jackson. The plaintiff appealed the verdict.

FAULT OR NEGLIGENCE OF MR. PITTMAN

The plaintiff contends that the jury erred in finding that Mr. Pittman was without fault in the death of Mr. Jackson. The plaintiff argues that the decedent was wearing light-colored pants and persons standing on the road were waving their arms in an attempt to warn oncoming traffic of the presence of Mr. Jackson in the roadway. According to the plaintiff, if Mr. Pittman had been attentive and driving within the range of his headlights, and had not changed lanes toward Mr. Jackson, his vehicle would not have struck and killed the decedent. The plaintiff contends that Mr. Pittman breached his duty to see and avoid Mr. Jackson, who was dazed or incapacitated in the roadway.

The plaintiff argues that at the time Mr. Pittman drove through the intersection, Mr. Jackson was technically a pedestrian. The plaintiff asserts that Mr. Pittman had a duty to keep a sharp lookout and to discover the presence of those who might be in danger. He also had a duty to maintain reasonable control of his vehicle and to have headlights that allowed him to see at least 500 feet on high beam and 150 feet on low beam. The plaintiff also pointed out that a motorist is legally held to be aware that he will meet many emergencies in which pedestrians will be found in perilous situations. According to the plaintiff, Mr. Pittman had a duty to see and avoid. The plaintiff contends that Mr. Pittman breached his duty. The plaintiff points to testimony showing that Mr. Pittman should have seen Mr. Jackson and the others in the intersection from at least 300-400 feet and should have been able to move over, rather than striking the decedent.

According to the plaintiff, the record shows that Mr. Pittman's actions were the cause of Mr. Jackson's death. The evidence demonstrates that the tire print on the decedent's body matched the tread on Mr. Pittman's tires, but not those of Mr. Profit. There was blood on Mr. Pittman's vehicle and not on Mr. Profit's.

Standard of Review

The Louisiana Supreme Court has developed a two-part test for reversing *991 a fact finder's determination. The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact, and then the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120 (La.1987); Morehead v. Ford Motor Company, 29,399 (La.App.2d Cir.5/21/97), 694 So.2d 650, writ denied 97-1865 (La.11/7/97), 703 So.2d 1265. Said another way, findings of fact will not be disturbed unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Daye v. General Motors Corporation, 97-1653, (La.9/9/98), 720 So.2d 654; Maranto v. Goodyear Tire & Rubber Company, 94-2603, 94-2615 (La.2/20/95), 650 So.2d 757; Rosell v. ESCO, 549 So.2d 840 (La.1989); Brister v. Continental Insurance Company, 30,429 (La.App.2d Cir.4/8/98), 712 So.2d 177.

The duty of the fact finder is to evaluate credibility when testimony is conflicting and to accept or reject any part of a witness' testimony. Credibility determinations, including the evaluation of expert testimony, together with the ultimate issue of whether a plaintiff has satisfied his burden of proof, are factual issues to be resolved by the trier of fact. Stobart v. State, Through Department of Transportation and Development,

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Bluebook (online)
736 So. 2d 987, 1999 La. App. LEXIS 1336, 1999 WL 275294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-scott-truck-and-tractor-inc-lactapp-1999.