New Hampshire Fire Ins. Co. v. Bush

68 So. 2d 254, 1953 La. App. LEXIS 835
CourtLouisiana Court of Appeal
DecidedNovember 3, 1953
Docket8047
StatusPublished
Cited by15 cases

This text of 68 So. 2d 254 (New Hampshire Fire Ins. Co. v. Bush) 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
New Hampshire Fire Ins. Co. v. Bush, 68 So. 2d 254, 1953 La. App. LEXIS 835 (La. Ct. App. 1953).

Opinion

68 So.2d 254 (1953)

NEW HAMPSHIRE FIRE INS. CO.
v.
BUSH et al.

No. 8047.

Court of Appeal of Louisiana, Second Circuit.

November 3, 1953.
Rehearing Denied December 2, 1953.
Writ of Certiorari Denied January 11, 1954.

Jackson, Mayer & Kennedy, Shreveport, for appellants.

Morgan, Baker & Skeels, Shreveport, for appellee.

GLADNEY, Judge.

This action by plaintiff insurance company is for damages to the automobile of Mrs. Lula Wingfield, its assured, from whom it secured subrogation to the extent of its payment, $700.39. Mrs. Wingfield's car was involved in a collision with a truck at the intersection of Gilbert and Stoner Avenues in Shreveport, Louisiana, about 12:45 P.M. on July 30, 1951. The truck was being driven by Jackie Addison, an employee of the defendant, J. E. Bush, while acting within the course and scope of his employment. Made defendant also *255 is the Metropolitan Casualty Company of New York, Bush's insurer.

The facts relating to the accident are not seriously disputed and we find they have been fully and accurately set out in the opinion of our brother of the district court, and we herewith repeat his version thereof:

"Gilbert and Stoner Avenues intersect each other at this point at right angles, Gilbert running north-south and Stoner running east-west. Stoner Avenue south of this intersection is 36 feet wide from curb to curb and 40 feet wide from curb to curb north of the intersection. Stoner Avenue is 36 feet wide from curb to curb on both sides of Gilbert. Gilbert is a right of way street by City ordinance. Suspended above the center of this intersection is a traffic light of the `blinker' type which flashes yellow, or amber, for traffic on Gilbert and red for traffic on Stoner. On the side of this light facing traffic on Gilbert is written `Slow', while on the side of the light facing traffic on Stoner is written `Stop'. In addition to the red light and the word `Stop' facing traffic on Stoner, there are large regular octagonal `Stop' signs mounted on uprights some seven or eight feet tall at the curb of Stoner at the northeast and southwest corners of the intersection facing traffic as it moves on Stoner.
"Mrs. Wingfield was approaching this intersection from the south traveling north on Gilbert. Addison was approaching the intersection from the west traveling east on Stoner. As she neared the intersection traveling about twenty miles per hour, Mrs. Wingfield slowed her car to ten or fifteen miles per hour preparatory to negotiating the same. She looked to the west, or her left, and observed the truck driven by Addison on Stoner about a half block away from the intersection. So far as the evidence discloses no other vehicle was approaching from the west. Mrs. Wingfield testifies that she was about a quarter of a block from the intersection when she first observed the truck to her left a half block away coming at a very rapid rate of speed. She says she assumed the truck would stop as it was required to do and, apparently, she gave it no further thought. She then looked to her right and seeing no near on-coming traffic from that direction, she proceeded to go on through the intersection following about one and one-half car lengths behind another vehicle preceding her in the same direction. Mrs. Wingfield was proceeding on the right side of Gilbert near to but east of the center line thereof. When she had traveled more than half-way across Stoner Avenue, that is, after the front half of her car had entered the northeast quarter of this intersection, the front of the truck driven by Addison crashed into and struck Mrs. Wingfield's car broadside, knocking it over to the northeast corner of the intersection where it turned over on its side.
"Addison's truck skidded seventy feet before striking Mrs. Wingfield's car, approximately fifty feet of which was before it entered the intersection. Before applying his brakes he was traveling, according to his own testimony, thirty-five or forty miles per hour. He ran the red light and the `Stop' signs facing him. He says he did not see them and did not see Mrs. Wingfield's car until he struck it. He says he did see a `big' Chevrolet going through the intersection on Gilbert and was trying to avoid striking it. This must have been the car which was preceding Mrs. Wingfield through the intersection. After the collision Addison says he discovered that he had missed the car he was trying to avoid and had hit one he had not even seen."

Following these findings of fact, the judge a quo declared his opinion that according to Addison's own account of the accident he was guilty of the grossest negligence and recklessness, without which the accident would not have occurred and *256 that his negligence was the sole proximate cause of the collision. In awarding plaintiff damages the court rejected a plea of contributory negligence.

On this appeal the only serious defense urged by appellants is a plea of contributory negligence based on the contention that Mrs. Wingfield "either saw or by the use of reasonable care should have seen the approaching defendant vehicle at a time when she was in a place of safety and at a time when by the use of reasonable care she could have brought her vehicle to a stop so as to have avoided the collision, and that her failure to do so was the sole proximate cause of the accident."

Appellants' defense rests upon the generally accepted rule that where a motorist enters an intersection under the protection of being on a favored street or facing a favorable light, it is negligence to fail to notice another vehicle, moving in violation of the traffic right of way. In recognition of this principle our courts on several occasions have held that even the protection of a favorable light does not relieve the operator of a vehicle from all obligation, and that such a driver should see what any ordinary prudent person would see, and should act as an ordinary prudent person should act. See: Murphy v. Star Checker Cab, La.App.1933, 150 So. 79; Bagley v. Standard Coffee Co., La.App. 1936, 168 So. 350; General Exchange Insurance Corporation v. Carp, La.App.1937, 176 So. 145; Dow v. Brown, La.App.1940, 193 So. 239; Lake Charles Stevedores v. Streater, La.App.1942, 6 So.2d 242 followed in Austin v. Streater, La.App., 6 So.2d 248; Seiner v. Toye Bros. Yellow Cab Company, La.App.1944, 18 So.2d 189; Phillips v. Central Surety & Ins. Corporation, La. App.1946, 25 So.2d 310; Stewart v. Keller, La.App.1948, 36 So.2d 893; American Central Insurance Company v. Gaspard, La. App.1949, 40 So.2d 522; Vidrine v. Fontenot, La.App.1950, 49 So.2d 428; Williams v. Ventura, La.App.1951, 54 So.2d 341; Scheib v. Ledet, La.App.1952, 57 So.2d 814; Tidewater Associated Oil Company v. Toye Bros. Yellow Cab Company, La.App.1952, 59 So.2d 174.

The foregoing principle, however, has application only where it appears the circumstances are such that a person exercising only slight care would have noticed the other vehicle and where it appears also that had the other vehicle been noticed it would have been apparent to the operator of the favored vehicle that the operator of the other car either could not or would not stop. This is said to mean that a strict or an extraordinary obligation is not placed upon a favored operator but notwithstanding his position he may not blindly proceed into obvious danger which even one exercising slight care would have noticed and would have avoided. See: Richard v. Canning, La.App.1935, 158 So. 598; Guernsey v. Toye Bros. Yellow Cab Company, La.App. 1937, 172 So. 459; Johnson v. Fabacher, La.App.1937, 175 So.

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Bluebook (online)
68 So. 2d 254, 1953 La. App. LEXIS 835, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-hampshire-fire-ins-co-v-bush-lactapp-1953.