Landry v. Ostheimer

140 So. 2d 497, 1962 La. App. LEXIS 1856
CourtLouisiana Court of Appeal
DecidedApril 9, 1962
DocketNo. 5516
StatusPublished
Cited by3 cases

This text of 140 So. 2d 497 (Landry v. Ostheimer) 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
Landry v. Ostheimer, 140 So. 2d 497, 1962 La. App. LEXIS 1856 (La. Ct. App. 1962).

Opinion

REID, Judge.

This suit was brought by Mrs. Alida Elizabeth Kraemer Landry to recover for painful injuries sustained in an automobile accident. Mrs. Landry was a guest passenger in her husband’s automobile at the time of the accident. The District Court granted judgment in her favor against the driver of the other car, the owner of that car (the father of the minor who was driving said vehicle) and the owner’s liability insurer, in the amount of $20,000.00. Tanile J. Landry’s liability insurance company, were not cast in this judgment, since the trial court found that Mr. Landry was not contributorily negligent. The driver, William A. Ostheimer, E. A. Ostheimer and Marquette Casualty Company have perfected suspensive appeals from the adverse judgment of the District Court.

On appeal, defendants made several specifications of error. Defendants contend that the District Court was in error in finding:

“1. That the negligence of William Ostheimer was the proximate cause of the accident.
“2. That Tanile Landry’s acts were not the sole proximate cause of the accident.
“3. That Tanile Landry was not guilty of contributory negligence.
“4. That Alida Elizabeth Kraemer Landry was entitled to damages in the sum of $20,000.00, plus interest and costs.”

The record reveals that the accident out of which this suit arose occurred at the intersection of Louisiana State Highway 659 and Funderburk Avenue, 3 miles out of Houma, Louisiana, at approximately 8:10 P.M. on November 30, 1958. At that point, Funderburk Avenue runs generally north and south and Highway 659 runs approximately east and west. Just prior to the accident Mr. Landry was driving in an easterly direction on Highway 659 and William A. Ostheimer was driving in a southerly direction on Funderburk Avenue. The record indicates that Mr. Landry was traveling at a rate of approximately 35 to 40 miles per hour and the Ostheimer car was being driven at a rate of approximately 25 miles per hour. It should be noted that Highway 659 runs parallel to Bayou Terre-[499]*499bonne and that the portion of Funderburk Avenue in question connects a highway on the other side of Bayou Terrebonne, with Highway 659 which at this point is to the south of the Bayou. Apparently, Funder-burk Avenue runs for approximately a little less than 100 feet from the highway to the North to the point where the bridge crossing the Bayou begins. There is a little over 100 feet between the Bridge and Highway 659 to the south of the Bayou.

At the time of the accident, Highway 659 had just been paved, but the shoulders were not completed. However, there were no speed limit signs near the intersection in question and the investigating officer testified that a safe speed under the prevailing conditions would have been a maximum of 45 miles per hour. It is conceded by defendants that traffic on Highway 659 usually had the right of way over traffic on Funderburk Avenue, although there were no controls at the intersection. Furthermore, the two automobiles were approaching the intersection in such a manner that Mr. Landry’s automobile was approaching from the right. Therefore, the Landry automobile was afforded the right of way both by local custom and by the general statutory rules for uncontrolled intersections. Just before the wreck, the Ostheimer vehicle had been driven into the intersection so that it blocked the progress of the Landry automobile. Landry testified that he swerved sharply to the left to avoid a collision, as soon as he realized that Ostheimer was not going to stop, but was going to continue in such a fashion as to block his forward course. He also stated that he stepped on his brakes at about the same time as his car struck Ostheimer’s car. The police officer who testified concerning the accident, stated that it occurred at a point at, or near, the centerline of Highway 659, the other testimony in the record indicates that the Ostheimer car which was struck was a two door station wagon and was hit near the center post or at the center of the back right door. The Ostheimer vehicle was knocked to the right and forward along Funderburk Avenue until it ran into a ditch some forty feet from the point of impact. Landry’s car was thrown sideways in such a manner that it faced in an easterly direction on or along Funderburk Avenue and was across Highway 659 at a point of approximately 35 feet from the point of collision.

Defendants attempted to prove that the Landry car was being driven at a high rate of speed at the time of the wreck. The record, as a whole, does not support this contention. Even defendant, William A. Ostheimer stated that it was difficult for him to judge the speed of the Landry car and that he would not accuse Landry of speeding. In addition, it is noted that Ostheimer stated that he saw Landry’s car approaching from the right for the first time when the car which he was driving was approximately thirty feet from the intersection. He saw it again, when he glanced to his right and saw the Landry car about a foot from him before the crash. He stated that he had thought that the Landry car was about 70 yards from the intersection when he first observed it.

Miss Ann Kleisch, a guest passenger in the Ostheimer car was thrown from the car and sustained painful bruises and abrasions. Mr. Landry sustained relatively minor injuries, but Mrs. Landry, the plaintiff herein, received serious injuries, which will be more fully discussed hereinafter.

This court is of the opinion that the facts, as set forth above indicate that William A. Ostheimer was negligent. He was approaching an intersection at a slow rate of speed and observed a car being driven towards the intersection from his right. Without again observing the approaching car, Ostheimer proceeded to drive on into the intersection and glanced at the other car just before it struck his car. This casual observance of the facts in question and Ostheimer’s actions in connection with the accident definitely constituted negligence. The fact that he was able to get [500]*500into the opposite lane of the highway before being struck does not minimize his negligence.

Conversely, Landry was traveling at a reasonable rate upon a favored thoroughfare. He noticed Ostheimer’s car approaching at approximately 25 miles per hour from his left. He was justified in assuming that this car would be stopped before it entered the intersection. He then glanced to his right to make certain that no other traffic was approaching on Fund-erburk Avenue. When he glanced back he realized that his assumption was not correct and he turned his car sharply to his left in an attempt to avoid the collision. He also slammed on his brakes. The point of collision was at or near the center of the highway.

Under these circumstances, it is felt that Landry had the right to expect Ostheimer to honor his right of way. Furthermore, when Landry realized that Ostheimer was not going to stop it was too late for Landry to do more than he did; that is, swerved to the left and attempt to put on his brakes.

Defendants have failed to prove that Landry was in anyway negligent or reckless in driving along the newly paved Highway 659. Although the shoulders to the highway had not been completed, and caution signs were probably posted at intervals along the highway, it was the uncontra-dicted testimony of the investigating officer that a car could travel up to 45 miles per hour in safety under the prevailing conditions.

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Related

Faslund v. Kendrick
169 So. 2d 276 (Louisiana Court of Appeal, 1964)
Deshotels v. Henry
148 So. 2d 148 (Louisiana Court of Appeal, 1962)
Landry v. Ostheimer
140 So. 2d 502 (Louisiana Court of Appeal, 1962)

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Bluebook (online)
140 So. 2d 497, 1962 La. App. LEXIS 1856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landry-v-ostheimer-lactapp-1962.