Lang v. Cage

554 So. 2d 1312, 1989 WL 159250
CourtLouisiana Court of Appeal
DecidedDecember 19, 1989
DocketCA 88 1919
StatusPublished
Cited by10 cases

This text of 554 So. 2d 1312 (Lang v. Cage) 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
Lang v. Cage, 554 So. 2d 1312, 1989 WL 159250 (La. Ct. App. 1989).

Opinion

554 So.2d 1312 (1989)

Dorothy S. LANG, et al.
v.
Mrs. Freddie M. CAGE, et al.

No. CA 88 1919.

Court of Appeal of Louisiana, First Circuit.

December 19, 1989.
Rehearing Denied February 1, 1990.
Writ Denied March 30, 1990.

*1313 Cyrus J. Greco, Baton Rouge, for Dorothy S. Lang, Regina Lang Cable, Isiah Lang, III.

Jeff Calmes, Sumpter B. Davis, Baton Rouge, for Annie Mae Jackson, Katie Mae Williams, Ruth Bell Tircuit.

Paul Marks, Jr., Glen Scott Love, Baton Rouge, for Dairyland Ins. Co., Mrs. Freddie H. Cage.

Christine Lipsey, Borris F. Navratil, Baton Rouge, for Marvin W. Shoemaker, Yellow Freight System.

Before EDWARDS, LANIER and FOIL, JJ.

FOIL, Judge.

This litigation involves the collision of a car and a tractor-trailer rig. Defendants, Marvin W. Shoemaker and Yellow Freight System, Inc. (Yellow Freight), the driver and owner of the truck, respectively, have appealed from a judgment finding Shoemaker 30% at fault in causing the accident. Plaintiffs filed an answer to the appeal. We reverse.

FACTS

On November 12, 1983, at approximately 12:05 a.m., Freddie M. Cage was driving a 1977 Pontiac Grand Prix south on Louisiana Highway 1. Isiah Lang, Jr. and Greg Tircuit were guest passengers in the car. Marvin W. Shoemaker was driving an 18-wheeler, owned by Yellow Freight, in a northbound direction on the same highway. Cage made a left-hand turn and stopped in the neutral ground at the intersection of Highway 1 and Vicknair Street. The collision occurred when the Cage vehicle rolled out into the oncoming northbound flow of traffic where it was struck dead center on the passenger side by the approaching Yellow Freight truck. The two vehicles locked together, skidded in a northerly and slightly easterly direction along the highway, across the shoulder and down into a grassy area on the side of the highway. Shortly after coming to rest, both vehicles burst into flames and Cage, Lang and Tircuit were burned to death.

These wrongful death and survival actions were instituted by the surviving heirs of Isiah Lang, Jr. and Greg Tircuit. Remaining as plaintiffs at trial were: Isiah Lang, III and Regina Lang Cable, major children of Isiah Lang, Jr.; Annie Mae Jackson as tutrix of four minor children born of a common law marriage with Isiah Lang, Jr.; Katie Mae Williams as tutrix of three minor children also born of a common law marriage with Isiah Lang, Jr.; and Mrs. Ruth Bell Tircuit, mother of Greg Tircuit. Remaining as defendants at trial were Marvin W. Shoemaker and Yellow Freight System, Inc.

At trial, Mr. Shoemaker testified that at the time of the accident he was completing a route from Jackson, Mississippi, to the Port Allen Terminal of Yellow Freight. His tractor-trailer rig, including the load he was carrying, weighed 72,000 pounds. He exited I-10 at the Mississippi River and proceeded north on Highway 1. He travelled *1314 through the town of Port Allen in fifth gear, observing the speed limit of 40 miles per hour (mph). Past the town, the speed limit increases to 55 mph, so he began to accelerate in fifth gear. After reaching 50 to 52 mph, he shifted into sixth gear. Shoemaker testified the truck will run 58-59 mph in sixth gear, but he doubted he was going that fast because he was not "wide open." He observed the Cage vehicle coming towards him southbound. When the car began making a left turn, he hit his brakes, slowed down and shifted into fifth gear. When the Cage vehicle stopped, he released the brakes and resumed forward travel. Shoemaker stated the Cage vehicle then rolled out right in front of him when he was approximately a truck's length away from it. He attempted to lock his brakes and steer to the right to avoid a collision, but was unsuccessful. The accident occurred one mile from the northern city limit of Port Allen.

Mr. James Bernell Shelton is an area maintenance manager employed by Yellow Freight. He testified that the truck involved in this accident was a Cummings diesel with a 6-speed Spicer transmission. Mr. Shelton stated the truck could reach a top speed of 48-51 mph in fifth gear and 58-62 in sixth gear.

In order to prove that Mr. Shoemaker was speeding at the time of the accident, plaintiffs presented the testimony of an expert accident investigator and an expert accident reconstructionist. Lawrence King, a sergeant with Louisiana State Police Troop A, visited the accident scene approximately three years after its occurrence armed with the accident report and photographs of the scene. He made his own observations and measurements. He also conducted a skid test, using a 1986 Chevrolet Caprice, to obtain the coefficient of friction of the roadway. Using a mathematical and scientific formula, he made various computations, based on certain assumptions. Mr. King testified that, prior to braking, the truck should have been going a minimum of 62.86 mph. He computed the stopping distance at a speed of 55 mph versus 62 mph. Mr. King concluded that at 55 mph, the Cage vehicle might have cleared the path of the truck or the impact might have occurred on a different part of the vehicle. Mr. Andrew McPhate a mechanical engineer, also visited the scene of the accident and did a personal survey. He, too, had input data including the accident report and photographs. Mr. McPhate testified that, prior to braking, the truck was going 61-64 mph. He concluded that at 55 mph, the automobile would have cleared the path of the truck and the accident would not have occurred. However, Mr. McPhate admitted on cross examination that his final conclusion as to the truck's speed was based on some degree of speculation and estimation. His calculations were based on assumptions that may not be correct, or may be only partially correct. He stated that many factors were involved which would affect the measurements and accuracy of the results obtained.

On the issue of the truck's speed, defendants presented the expert testimony of Mr. James F. Lafferty, an accident reconstructionist and mechanical engineer. Mr. Lafferty used input data consisting of the investigating officer's report, measurements made by an insurance adjustor, and photographs. He used the energy conservation law to make his computations, rather than the laws of motion used by plaintiff's expert, Mr. King. One of the components or assumptions used in King's formula is the speed of the Pontiac. Mr. Lafferty stated that King's estimate of the car's speed was worse than speculation in that it was totally inaccurate. Moreover, Mr. Lafferty testified that it is not scientific to measure the coefficient of friction as King did, using an automobile—you must use an 18-wheeler under the same conditions (e.g. weight) as those present in this case. Mr. Lafferty estimated that the truck was going 41.3 mph before brake application.

Evidence was introduced at trial indicating that Cage, Lang and Tircuit had been drinking alcohol most of the evening prior to the accident. Mrs. Freddie Cage testified that the three men were drinking beer at her grocery store until 10:00 p.m. that night. Tircuit had been drinking since 3:30 *1315 p.m., Lang since 5:30 p.m., and Cage since about 7:30 p.m. when he got off of work. Elizabeth Collins testified she saw Lang at a bar after 11:00 p.m., with Cage and Tircuit. A blood sample, removed from the chest area, was taken from Cage's body after the accident at the funeral home. It was determined that the blood had an alcohol content of .37%.

After a bifurcated trial on the issue of liability and damages, the trial court found as follows with respect to liability:

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Cite This Page — Counsel Stack

Bluebook (online)
554 So. 2d 1312, 1989 WL 159250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lang-v-cage-lactapp-1989.