Otillio v. Scopes

265 So. 2d 319, 1972 La. App. LEXIS 5809
CourtLouisiana Court of Appeal
DecidedJune 20, 1972
DocketNo. 5077
StatusPublished
Cited by1 cases

This text of 265 So. 2d 319 (Otillio v. Scopes) 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
Otillio v. Scopes, 265 So. 2d 319, 1972 La. App. LEXIS 5809 (La. Ct. App. 1972).

Opinion

CHASEZ, Judge.

Plaintiff, Robert A. Otillio, instituted this suit for damages arising out of an automobile accident against defendants, William C. Scopes and his insurer, The Insurance Company of North America. Defendants answered, denying liability and by way of reconvention sought recovery of damages suffered by the defendants, and also plead the doctrine of last clear chance.

After trial on the merits judgment was rendered against the plaintiff dismissing his action for the reason that he was con-tributorily negligent. Defendants’ recon-ventional demand was also denied. From this judgment plaintiff perfected this ap[320]*320peal. Defendants have neither appealed nor answered and accordingly the merits of defendants’ reconventional demand is not before this court.

The collision giving rise to this suit occurred at the intersection of Decatur and Conti Streets in the City of New Orleans, Louisiana. Decatur is a one-way street with the flow of traffic directed towards Canal Street. Conti is also a one-way street with traffic movement being toward the river.

Plaintiff alleges that he was driving his 1962 Volkswagen on Decatur Street towards Canal Street at about 9:00 A.M., December 27, 1969, at a speed estimated between twenty and twenty-five miles per hour. At a distance of about SO feet he observed the defendant “overshoot” the stop sign on Conti Street. He testified that at that point he applied his brakes and reduced his speed to approximately IS miles per hour. He saw the defendant stop, or appear to stop, some five feet to his right into the intersection and, assuming that the defendant was yielding to his vehicle, the plaintiff released his foot from the brake and began to accelerate again. At this point the defendant’s vehicle accelerated across the intersection. Plaintiff swerved to the right in an effort to avoid a collision and, in so doing, struck the left rear side panel of defendant’s vehicle behind the rear door, approximately near the position of the gas intake porthole.

Defendant testified that he was driving on Conti Street in a 1966 Ford Station Wagon proceeding to the French Market with his parents who were visiting with him at the time.

He asserts that he stopped for the stop sign on Conti Street but there was a truck parked on the right side of Decatur Street to his left and although he could see through the windows of the truck he moved his car forward approximately six feet into the intersection, at which time he observed the plaintiff’s vehicle approaching. Fearing that the plaintiff’s vehicle would strike his automobile, he accelerated across the intersection as fast as he could, with the resultant effect being the collision involved in this law suit.

Defendant’s negligence cannot seriously be questioned. He was on a less favored street controlled by a stop sign. He was under a duty not only to stop, but to also yield to traffic on the favored street and this was clearly not done. Placing himself in a position of assumed peril he compounded his negligence by attempting to beat the plaintiff through the intersection.

Defendant alleges that plaintiff was con-tributorily negligent, however, and cites Roussell v. Strug, 225 So.2d 34 (La.App., 4th Cir., 1969) as controlling. In that case we held:

“[4, 5] The applicable rule of law is that a motorist on a favored street has the right to assume that any driver approaching the intersection on a less favored street will yield the right of way; however this preference does not relieve the driver travelling on the favored street from the duty of exercising ordinary care of having his car under control and operating it at a reasonable and proper rate of speed while approaching an intersection and while crossing it. When the superior motorist should reasonably realize in time that the inferior traffic will continue its approach and will obstruct the superior motorist’s passage across the intersection, he is guilty of negligence should he fail to take every precaution to avoid a collision. Randall v. Baton Rouge Bus Company, 240 La. 527, 124 So.2d 535 (1960), and cases therein cited.”

However, the defendant’s vehicle in that case had traveled fifty feet or more in crossing the intersection and the front of his vehicle had cleared the intersection before being struck by the plaintiff’s vehicle. Additionally, the plaintiff had a reasonable time to react when it was seen that [321]*321the inferior traffic was disobeying the stop sign. In the present case, Otillio, in our opinion, did not have a reasonable time to react to the situation. The plaintiff saw defendant overshoot the stop sign, at which time he applied his brakes and slowed down. Upon seeing the defendant appear to stop, he then attempted to proceed through the intersection. He had a superior right to proceed by virtue of LSA-R.S. 32:123 and § 38-97 of the New Orleans City Code, 19S6. In addition, defendant violated LSA-R.S. 32:123(C) when he moved forward to obtain a het-ter view, saw the plaintiff’s vehicle approaching and then decided that he could move across the intersection in an attempt to beat the plaintiff through the crossing and force the plaintiff to stop or yield to his vehicle. In defendant’s maneuver, after stopping he moved from a position of relative safety (plaintiff stated affirmatively that he could have gone around the front of defendant’s automobile even though defendant had overshot the stop sign and was protruding into the intersection) to a place of imminent danger without due caution.

Last clear chance is inapplicable under the present case because plaintiff did not have sufficient time to react to the dangerous condition created by the defendant.

Plaintiff was not negligent and is entitled to recover damages suffered. To hold otherwise would, in our opinion, negate the use of stop signs for effective traffic control. Just because one party gains entrance into an intersection before another party does not necessarily mean that the second party is thereby automatically guilty of negligence, or contributory negligence. On the contrary, the party controlled by the stop sign must ascertain an appraisal of traffic and only proceed across when a hazard does not appear imminent. See Shephard v. Checker Cab Company, 230 So.2d 343 (La.App., 4th Cir., 1970); Bell v. Allstate Insurance Company, 260 So.2d 363 (La.App., 4th Cir., 1972).

Certain damages suffered by the plaintiff were stipulated to and they are: $162.00 for Dr. William Fisher as the treating physician; $30.00 for Dr. William S. Neal for x-rays, and $75.00 for taxicab fare.

We are convinced that plaintiff has also suffered a loss of wages. Plaintiff worked as a stevedore in a job described by him as a “waterboy”. We note from the nature of this job and the circumstances that he was employed by various companies at different times; any corroborating evidence showing loss of earnings would therefore be difficult if not impossible to obtain.

Plaintiff’s petition claims $790.00 for loss of income. The record indicates that he earned $5.28 per hour. However, this wage rate is based on overtime pay earned on Saturdays and is not a good indicia of his normal hourly wage rate. He stated that he lost five to six hours a night which was estimated to total some 40-50 hours of lost work. Because, however, he only testified to a wage based on an overtime rate we are of the opinion that using these figures we could not achieve with any reasonable degree of certainty the actual loss of his earnings.

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282 So. 2d 546 (Louisiana Court of Appeal, 1973)

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Bluebook (online)
265 So. 2d 319, 1972 La. App. LEXIS 5809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/otillio-v-scopes-lactapp-1972.