Miller v. Weaver

234 So. 2d 67, 1970 La. App. LEXIS 5265
Louisiana Court of Appeal·Decided April 6, 1970·No. Nos. 3870, 3871·Published·Cited by 6 cases

Opinion

BARNETTE, Judge.

The two consolidated suits before this court on appeal are for personal injuries arising out of a single automobile-truck collision. In each suit the plaintiffs are the fathers of minor daughters who were guest passengers in an automobile owned by Robert S. Labry and driven by his minor daughter, Anita Labry, suing for special damages incurred by them on behalf of their daughters and for personal injuries sustained by their daughters as a result of a collision of the Labry automobile with a truck driven by Lionel J. Thomas. In each suit the defendants are Thomas; his employer and owner of the truck, Hoyt Manufacturing Corporation (Hoyt); and its insurer, Fireman’s Fund Insurance Company (Fireman’s Fund); and Commercial Union Insurance Company (Commercial), automobile liability insurer of Robert S. Labry.

In suit number 9504 of the Twenty-ninth Judicial District Court for the Parish of St. Charles, number 3870 on the docket of this court, judgment in accordance with a jury verdict was rendered in favor of plaintiff John Miller, individually and on behalf of his minor daughter, Deborah Ann Miller, and against defendants Lionel J. Thomas, Hoyt Manufacturing Corporation, and Fireman’s Fund Insurance Company in the amount of $64,000, and all costs and witness fees.

In suit number 9570 of the Twenty-ninth Judicial District Court for the Parish of St. Charles, number 3871 on the docket of this court, judgment in accordance with a jury verdict was rendered in favor of plaintiff William H. Weaver, Jr., individually and on behalf of his minor daughter, Nancy Ann Weaver, and against Lionel J. Thomas, Hoyt Manufacturing Corporation and Fireman’s Fund Insurance Company in the sum of $27,000, and all costs and witness fees. Both suits against defendant Commercial Union Insurance Company were dismissed. From these judgments defendants Thomas, Hoyt and Fireman’s Fund have appealed suspensively. Plaintiffs have appealed devolutively to protect whatever rights they may have against defendant Commercial.

A brief summary of the facts leading up to the time of the accident are: On the afternoon of December 9, 1965, plaintiffs’ minor daughters, Deborah Ann Miller and Nancy Ann Weaver, were guest passengers in a 1963 Mercury automobile owned by Robert S. Labry and driven by his minor daughter, Anita Labry. Other passengers in the automobile were Marilyn Lemoine and a Catholic nun, Sister Mary Albina Borne. The four young girls, all of high school age, and Sister Albina were travel[70] ing on U. S. Highway 61 (commonly known as Airline Highway) returning to the City of New Orleans following a trip to Norco, Louisiana, where the girls had addressed a group of eighth grade girls at a Catholic school. Airline Highway is a four-laned major thoroughfare running in a generally north-south direction. The highway consists of two hard surfaced lanes of travel in each direction separated by a 3-foot wide neutral ground, or median. In addition to the travel lanes, there is a shoulder lane for emergency purposes for both directions of travel.

The Labry automobile was traveling in the lane nearest the neutral ground, proceeding within the legal speed limit. At approximately 3:15 p. m., and at a point approximately 1.3 miles north of the city limits of Kenner, Louisiana, the front of the Labry automobile collided with the rear portion of a 1963 G.M.C. tractor-truck driven by Lionel J. Thomas, who was attempting a U-turn through an opening in the neutral ground. As a result of the impact, the Labry girl was killed immediately. All the other passengers except the Le-moine girl sustained personal injuries. These cases are concerned only with the damage claims resulting from injuries sustained by Miss Miller and Miss Weaver.

In accordance with instructions for specific findings on negligence, the jury rendered a special verdict finding that Lionel J. Thomas, the driver of the truck, was negligent and that his negligence was the proximate cause of the accident; that Anita Labry was not negligent in the operation of the automobile; and that neither Deborah Ann Miller nor Nancy Ann Weaver was contributorily negligent.

Lionel J. Thomas testified that immediately prior to the accident he had driven the tractor-truck from a job-site at which he was working southward to a service station on Airline Highway to buy some soft drinks and ice. After making his purchases he proceeded from the service station into the southbound emergency lane in the direction of New Orleans. His intention was to proceed to a break in the median and negotiate a U-turn to proceed northward back to the job-site. John J. Buceóla, a state trooper investigating the accident, testified that the distance from the service station to the opening in the median is 290 feet. Thomas testified:

“Q: Tell us your actions after you came out of the station until you started to make your turn?
A: Coming out from the station I looked; I seen a car coming. It was at least a half a mile or better, so I proceed on the highway to the right and I drove about 50 feet, cut back to my left with my signal light on and had my hand, and the time that I cross over the car was still at least about 700 feet from my truck. I proceed to the U-turn where I was suppose to make it; I looked back; when I stopped the car was still at least 350 to 400 some odd feet in the back of me. I stopped and I turned my wheel to the left because I was going to make a U-turn there and I couldn’t complete the turn; I just started to turn my wheel there; I had stopped and turned the wheel and I couldn’t complete my turn because there was some northbound cars coming so I had to wait until the cars go by before I could complete my turn. But, before I could even attempt to start the car hit me and which threw me at least a hundred some odd feet there with the brakes on.
Q: What speed were you traveling down the highway prior to attempting that U-turn?
A: I had about 15-20 to 25 miles but of course I’d slowed down. I was making about 20 miles an hour I guess.
Q: Did you ever put your brakes on ?
A: I had the brakes on when I was stopped.
[71] Q: You say you had your signal lights on;
A: Yes, sir, I had the signal lights and I had my hand and I was waving it up and down this way (shows) with the signal lights. The signal light was working because I could see it.
Q: Which signal lights?
A: The one on the side on the fender.”

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Miller v. Weaver, 234 So. 2d 67, 1970 La. App. LEXIS 5265 (La. Ct. App. 1970).

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