Miller v. Fogleman Truck Lines, Inc.

398 So. 2d 634, 1981 La. App. LEXIS 3878
CourtLouisiana Court of Appeal
DecidedApril 15, 1981
Docket8051
StatusPublished
Cited by18 cases

This text of 398 So. 2d 634 (Miller v. Fogleman Truck Lines, 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
Miller v. Fogleman Truck Lines, Inc., 398 So. 2d 634, 1981 La. App. LEXIS 3878 (La. Ct. App. 1981).

Opinion

398 So.2d 634 (1981)

Susan Daniel MILLER, Plaintiff-Appellant,
v.
FOGLEMAN TRUCK LINES, INC. et al, Defendants-Appellees.

No. 8051.

Court of Appeal of Louisiana, Third Circuit.

April 15, 1981.
Writ Denied June 5, 1981.

*635 Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for plaintiff-appellant.

Stafford, Stewart & Potter, Grove Stafford, Jr., Alexandria, for defendants-appellees.

Before CULPEPPER, FORET and STOKER, JJ.

FORET, Judge.

Susan Miller (Plaintiff) brought this wrongful death and survival action to recover damages she sustained and for personal injuries suffered by her husband, David Miller, who died as a result of a vehicular collision. Defendants are Harvey Delling, the driver of the other vehicle, and his employer, Fogleman Truck Lines, Inc. (Fogleman), the owner of that vehicle, together with the Empire Fire and Marine Insurance Company (Empire), their automobile liability insurer. The Procter and Gamble Manufacturing Company (Procter and Gamble) was also named as a defendant, but plaintiff voluntarily dismissed her action against it prior to trial.

The action was tried by a jury which returned a unanimous verdict in favor of the remaining defendants. Plaintiff appeals and presents two issues:

*636 (1) Whether the instructions given by the trial court to the jury were so inadequate and erroneous as to preclude the jury from returning a proper verdict; and

(2) Whether the jury's finding in favor of defendants on the issues of negligence and strict liability is manifestly erroneous.

FACTS

David Miller, plaintiff's decedent, died as a result of injuries sustained in a vehicular collision which occurred on January 31, 1979, at approximately 7:05 P.M. The accident happened near the intersection of U.S. Highway 165 and La. 116 just north of Pineville, Louisiana, in Rapides Parish. That intersection is controlled by a set of three phase, semaphore traffic lights.

Harvey Delling was driving a ten-wheel truck-tractor without a trailer and was north-bound on U.S. 165 as he approached the above mentioned intersection. The approach from the south on U.S. 165 consists of a hill located about a quarter of a mile before the intersection, which gently slopes down toward the intersection, and the roadway, which is relatively straight. The entrance to a soap manufacturing plant owned by Procter and Gamble is located at the intersection and Delling had brought his truck to a near stop intending to turn left into the plant.

David Miller, meanwhile, was also north-bound on U.S. 165 behind Delling. Miller topped the hill as he approached the intersection from the south and, apparently, failed to see Delling's truck in time to stop. Miller's automobile slammed into the rear of Delling's truck and knocked it some thirty-six feet, even though the truck's brakes locked upon impact. The front end of Miller's automobile was severely damaged and he was pronounced dead at the scene by the coroner.

Plaintiff alleges that defendants had been negligent in allowing an improperly maintained vehicle to travel on the highways. Plaintiff further alleged that there were no operable tail lights on the truck and that this constituted a defect which created an unreasonable risk of harm to others. Therefore, plaintiff also sought to hold defendants strictly liable for her damages. The action was tried before a jury which returned a verdict in favor of defendants. The trial court, pursuant to the jury's verdict, rendered judgment dismissing plaintiff's action and plaintiff was granted a devolutive appeal from that judgment.

JURY INSTRUCTIONS

Plaintiff contends that it was error for the trial court to refuse to instruct the jury that the mere fact that a driver runs into the rear of another vehicle does not mean that he is automatically negligent.

In a jury trial, the judge is not required to give the precise instructions submitted by either party, but he must give instructions which properly reflect the law applicable in light of the pleadings and facts in each particular case. If instructions concerning negligence and liability are confusing or misleading, or omit an applicable essential legal principle, such instructions constitute reversible error. Gonzales v. Xerox Corporation, 320 So.2d 163 (La. 1975); Beck v. Lovell, 361 So.2d 245 (La. App. 1 Cir. 1978), writ denied, 362 So.2d 802 (La.1978).

The record indicates that the trial court did instruct the jury in the following manner, which we find adequately protected the plaintiff from any pre-conceived notions the jurors may have had with respect to the negligence of the driver who runs into the rear of another vehicle. That instruction was given as follows:

"Now, the mere fact that an accident has happened is not proof of negligence. Negligence is a question of fact and it is fundamental in the law that those who allege negligence must prove it. Therefore, the question of whether the defendant was negligent, as well as the question of whether David Miller was independently or contributorily negligent, are questions of fact which you must decide in light of all of the evidence, keeping in *637 mind the legal principles I shall explain to you and which may or may not be applicable depending upon your determination of the facts."

Plaintiff also objects to the failure of the trial court to instruct the jury concerning the presumption of self-preservation accorded a deceased. The presumption that an individual acted with due care for his own safety is only applicable where there are no eyewitnesses. Callahan v. Town of Bunkie, 287 So.2d 629 (La.App. 3 Cir. 1973), writ refused, 290 So.2d 905 (La. 1974). We find that the presumption is inapplicable in the case before us as there were three eyewitnesses to the accident who testified at the trial of this matter.

Plaintiff's last contention is that the trial court erroneously instructed the jury on the defense of "fault of the victim" to strict liability when it charged the jury as follows:[1]

"Now, a defense which the law permits a person in custody of a thing which poses an unreasonable risk of harm to raise is that the injured person was himself at fault and therefore helped cause his own injury. If you conclude that David Miller's conduct in this instance was a substantial deviation from the conduct we would normally expect of a reasonably prudent person, then you must return a verdict for the defendant. On this defense, the defendant has the burden of proof and must convince you by reasonable preponderance of the evidence that David Miller acted in the manner I have just described."

Plaintiff argues that this instruction sets out the law with respect to the defense of "contributory negligence" rather than "fault of the victim" and is erroneous since the contributory negligence of the plaintiff is no defense to strict liability.

This Court has had no occasion to discuss the defense of "fault of the victim" to strict liability under LSA-C.C. Article 2317,[2] but, we have discussed the defense under several other articles which impose strict liability.

We found no harm in the trial judge's use of contributory negligence terminology in finding that the victim's fault exculpated the defendant from liability under LSA-C.C. Article 2321 (which imposes strict liability for damage caused by animals) in Parker v. Hanks, 345 So.2d 194 (La.App. 3 Cir. 1977), writ refused, 346 So.2d 224 (La. 1977).

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398 So. 2d 634, 1981 La. App. LEXIS 3878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-fogleman-truck-lines-inc-lactapp-1981.