Munson v. Kendall

290 So. 2d 787
CourtLouisiana Court of Appeal
DecidedFebruary 11, 1974
DocketNo. 9677
StatusPublished
Cited by3 cases

This text of 290 So. 2d 787 (Munson v. Kendall) 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
Munson v. Kendall, 290 So. 2d 787 (La. Ct. App. 1974).

Opinion

PICKETT, Judge.

This is a suit by Fulton R. Munson, individually and as natural tutor of his daughter, Jane B. Munson, for personal injuries sustained by Jane B. Munson and for expenses incurred by reason of an automobile collision between a 1968 Volkswagen driven by Jane B. Munson and a 1966 Chrysler four door automobile driven by Frances A. Kendall, at approximately 4:45 P.M., January 4, 1972, in the 3100 Block of College Drive, in the City of Baton Rouge, Louisiana. The defendants originally named in the suit were Frances A. Kendall and her father, Francis J. Kendall, and his insurer, Allstate Insurance Company.

The defendants filed an answer which contained a general denial of liability, and an alternative plea of contributory negligence, coupled with an alternative demand against the Parish of East Baton Rouge, The Parish of East Baton Rouge filed an answer to the third party demand of the defendants, and denied all liability, and in the alternative plead the contributory negligence of Frances A. Kendall, coupled with a third party demand against the plaintiff, Jane B. Munson and her insurer, for all sums for which it might be cast by reason of the demands of F. J. Kendall, Frances A. Kendall and Allstate Insurance Company.

The trial court rendered judgment in favor of Fulton R. Munson, individually and in his capacity as natural tutor of his daughter, Jane B. Munson, and against the defendants, F. J. Kendall, Frances A. Kendall and the Allstate Insurance Company, for the sum of $3,126.99, with legal interest from judicial demand, until paid, and all costs of court. There was further judgment in favor of the third party plaintiffs, Allstate Insurance Company, F. J. Kendall, and Frances A. Kendall, and against the third party defendant, Parish of East Baton Rouge, Louisiana, for contribution of one-half of the judgment against said third party plaintiffs. The defendants, F. J. Kendall, Frances A. Kendall and Allstate Insurance Company, and third party, Parish of East Baton Rouge, have appealed.

The record shows that the accident which is the basis of this suit occurred on January 4, 1972, at about 4:45 P.M. in the 3100 block of College Drive, approximately in front of the Burger King Restaurant, in the City of Baton Rouge, Louisiana. At that time, College Drive was a four-lane thoroughfare with two north bound lanes and two south bound lanes, and the said sectors were separated by a heavy yellow line. There was a manhole, approximately twenty-two inches in diameter, in the approximate center of the north bound lanes. Because of flooding rains that afternoon, [789]*789the manhole cover had popped open. At the request of the City Police, two employees of the Department of Public Works of East Baton Rouge Parish had placed a barricade over the manhole about an hour before the accident.

F. J. Kendall, Frances A. Kendall and Allstate Insurance Company (hereinafter referred to as defendants) contend the Parish of East Baton Rouge was negligent because of the barricade placed over the manhole by its employees not being properly lighted or otherwise made sufficiently visible to warn approaching motorists of the presence of the hazard; and that the inadequacy of the barricade was the proximate cause of the collision of the vehicle driven by Miss Kendall and the Volkswagen driven by Miss Munson. The Parish of East Baton Rouge (hereinafter referred to as “the Parish”) contends the barricade was fully adequate to warn vehicle drivers of the presence of the barricade and the manhole; and that the accident was caused solely by the negligence of Miss Kendall in failing to keep a proper lookout.

The trial court found there were no lights, flares, smudge pots or other warning devices in the area of the barricade. Mr. Emmit Wilton Smart, a Baton Rouge City policeman who investigated the accident, described the barricade as consisting of one V-type leg of a saw horse and a board attached to it. The other end of the board extended to the ground over the manhole. Mr. Smart said the barricade was parallel to the flow of traffic when he arrived at the scene of the accident. Mr. Smart saw no flares or other warning devices at or near the barricade. In fact, no one testified to having seen any flares or other warning devices around the barricade. We concur in the finding of the trial court that there were no such warning accessories at or near the barricade when the accident occurred. However, the Parish contends the barricade was sufficiently visible without the presence of any flares or other warning devices to warn motorists of the presence of the manhole and barricade. The Parish further contends that if the accident was solely due to the failure of Miss Kendall to timely see the barricade, such failure resulted from her inattention to the road ahead, and not because of the lack of a visible warning. Therefore, the real issue as thus presented is whether the barricade was sufficiently visible without lights, flares or other warning devices, to have been seen by Miss Kendall in time to take evasive action, if she had been keeping a proper lookout.

Miss Mary Alice Wegner, a disinterested witness, was some distance behind the Munson and Kendall vehicles, and proceeding in the same direction when she saw the collision of the vehicles. She testified she saw the barricade a full city block away. Miss Wegner’s testimony in some respects is confusing. But she was very definite and quite positive with respect to her ability to see the barricade at some distance. In response to close questioning by the trial court, who explained to her the importance of knowing how visible the barricade was to a motorist approaching from the direction Miss Kendall had been traveling immediately prior to the accident, Miss Wegner testified as follows:

“When I was sitting at Perkins Road and looking ahead, a good block in space, I was aware that the barricade was there, that I had to go to the right of that barricade in order to get on the interstate.”

If Miss Wegner could see the barricade a city block away, it must have been sufficiently visible to warn approaching motorists of its presence. We have no evidence that any other motorist was unable to see the barricade in time to avoid it. The evidence indicates that College Drive was a much traveled four-lane thoroughfare. Undoubtedly, many vehicles passed that barricade prior to, and subsequent to the occurrence of the subject accident without incident. The jurisprudence is well established that there are no hard and fast rules as to the type and sufficien[790]*790cy of warning signs and barricades. The cases are in agreement that such means of protecting motorists are sufficient if they are of a size and nature commensurate with the danger that lies ahead. Reeves v. State of Louisiana, La.App., 80 So.2d 206; Dowden v. State of Louisiana, La.App., 81 So.2d 48; and Hayes v. Hartford Accident and Indemnity Company, La.App., 242 So. 2d 77. We find the barricade under consideration meets these criteria. Hence the judgment of the trial court in favor of the defendants, the third party plaintiffs, and against the third party defendant, the Parish of East Baton Rouge, must be annulled.

When the defendant, Frances A. Kendall, was asked to explain how the accident occurred, she testified as follows:

“Okay, I was originally in the righthand lane behind a slow car and so I pulled into the lefthand lane to get past them.

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Bluebook (online)
290 So. 2d 787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/munson-v-kendall-lactapp-1974.