Perniciaro v. Travelers Insurance Co.

227 So. 2d 778, 1969 La. App. LEXIS 5985
CourtLouisiana Court of Appeal
DecidedNovember 3, 1969
DocketNo. 3634
StatusPublished
Cited by5 cases

This text of 227 So. 2d 778 (Perniciaro v. Travelers Insurance Co.) 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
Perniciaro v. Travelers Insurance Co., 227 So. 2d 778, 1969 La. App. LEXIS 5985 (La. Ct. App. 1969).

Opinion

HALL, Judge.

Plaintiff filed suit for personal injuries and property damage resulting from a collision between an automobile owned and driven by him and an ambulance owned by Jules Millet, d/b/a Millet Funeral Home and driven by Millet’s employee, Willie J. Kliebert. The defendants are Jules Millet, Willie J. Kliebert and Travelers Insurance Company, public liability insurer of the Millet ambulance. There was judgment on the merits in favor of plaintiff against the three defendants in solido in the total sum of $2,775.75. Defendants appealed. Plaintiff answered the appeal praying that the judgment be increased to the sum of $22,-500.00, the sum prayed for by him.

The accident occurred at approximately 7:30 A.M. on November 19, 1966 at the intersection of James Avenue and the Airline Highway in the Parish of St. John the Baptist. James Avenue is a State Highway which runs in an easterly direction from the town of Reserve and makes a T intersection with the Airline Highway which at this point runs in a north-south direction and is comprised of two two-lane roadways divided by a four foot neutral ground. The south-bound roadway is bounded by a ten foot wide shell shoulder and beyond that there is a deep ditch running parallel to the highway. The intersection is controlled by a blinking traffic light which blinks amber for south-bound highway traffic and red for traffic approaching the intersection from James Avenue. Traffic from James Avenue is also controlled by a stop sign situated on the avenue approximately forty feet from the intersection.

Plaintiff was travelling south on the highway and defendants’ ambulance entered the highway from James Avenue. The right front of plaintiff’s car was struck by the left front wheel of the ambulance. Plaintiff’s car was damaged beyond repair and he received personal injuries hereinafter detailed.

Three witnesses testified relative to the accident to wit: plaintiff, the defendant ambulance driver, and State Trooper Allen Aubert.

[780]*780Plaintiff testified that he was travelling toward New Orleans in the inner or neutral ground lane of the south-bound roadway of the highway; that he was travelling 35 miles per hour with his lights on because it was foggy and visibility was limited to 100 feet or so; that he was approximately 100 feet from the intersection when he saw a vehicle coming out of James Avenue; that when he first saw it the vehicle was on the shell shoulder of the highway; that he immediately slammed on his brakes and attempted to turn to his left into a cut in the neutral ground but was unable to do so before he was struck; that the vehicle came onto the highway, crossed the outer lane for south-bound traffic and came into the inner lane where the left front of the vehicle struck the right front of his vehicle; that he did not see a flashing light on the other vehicle nor did he hear a siren. Plaintiff admitted on cross-examination however, that when he first saw the vehicle on the shell shoulder he recognized it as an ambulance because it was equipped with a dome light, although the light was not lit. Plaintiff testified there was no other traffic on the highway at the time of the accident.

Trooper Aubert, who investigated the accident, testified that from James Avenue looking left, or north, rows of trees and high grass and weeds obstruct the view; that the collision occurred in the inner lane for south-bound traffic; that plaintiffs car left ten feet of skid marks in the inner lane; that the skid marks indicate that plaintiff attempted to turn left to avoid the accident. Trooper Aubert further testified that the ambulance driver told him that he stopped for the stop sign on James Avenue and proceeded to go across the highway to make a wide right turn because he could not see too well in the fog. Trooper Aubert testified the ambulance driver could easily have made a right turn onto the highway without going into the inner lane.

Kliebert, the ambulance driver, testified that he was on his way from his employer’s funeral home in Reserve to answer a call from the scene of a wreck which had occurred some miles south of the intersection in question; that he proceeded slowly out James Avenue towards the Airline; that the fog was very heavy and he could see only about ten feet; that he stopped his vehicle before he reached the stop sign that faces James Avenue and that he rolled his window down and looked to the left and did not see anything approaching so he started a wide right turn onto the highway; that he made a very wide turn because he was afraid of running into the ditch to his right and didn’t know how far forward he had to go in order to avoid it; that he proceeded straight across the highway in order to make his turn and the collision occurred just as he started his turn; that he did not see plaintiff’s vehicle until the moment of impact. He further testified that he turned on the switch to the red dome light on top of the ambulance before he left the funeral home but did not know if it was lighted at the time of the accident. He testified that he blew his siren before he got to the stop sign but did not blow it at any time thereafter.

Defendants-appellants urge as error the failure of the Trial Judge to apply the doctrine “falsus in uno, falsus in omnibus” and show that whereas plaintiff testified in open court that he saw the ambulance when he was approximately 100 feet from the intersection he had previously testified at his deposition taken under oath that he did not see the ambulance until it hit him. They argue that the doctrine should be applied and that plaintiff’s testimony should be rejected in toto.

As this Court said in Succession of Oswald W. Viosca, 202 So.2d 511 (writs refused 251 La. 393, 204 So.2d 575):

“ * * * The maxim is a harsh and unrealistic rule which should be applied only with extreme caution. 3 Wigmore, Evidence, §§ 1008, et seq. (3d ed. 1940); 98 C.J.S. Witnesses § 469; see State v. Banks, 40 La.Ann. 736, 5 So. 18.

[781]*781Where a witness has testified falsely to some material fact or facts and there are no circumstances in the case tending to corroborate his evidence, his testimony may be rejected in toto; but such false testimony does not require that his testimony be disregarded in its entirety; and the court should not reject those portions of such testimony as may be corroborated by other credible and uncontradicted evidence; to do so is to commit error. Morris v. Morris, La. App., 152 So.2d 291; Goynes v. St. Charles Dairy, La.App., 197 So. 819; Smith v. York, La.App., 152 So. 152.” (Emphasis in original opinion)

In the instant case plaintiff’s testimony at the trial is corroborated by Trooper Aubert’s testimony that plaintiff’s vehicle left ten feet of skid marks and that the skid marks indicated that plaintiff was attempting to turn left in order to avoid the accident. This completely corroborates plaintiff’s testimony that he observed the ambulance, braked, and turned left into the cut of the neutral ground all prior to impact. Plaintiff is bound to have seen the ambulance when he was at an appreciable distance from the intersection since he had time to react, brake his car, and attempt to turn left prior to impact else the skid marks would not have been there.

Defendants-appellants also argue that plaintiff was negligent in travelling at 35 miles per hour in a dense fog and in not using extra caution in proceeding into an intersection controlled by a blinking amber light.

The density of the fog is in some dispute.

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Bluebook (online)
227 So. 2d 778, 1969 La. App. LEXIS 5985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perniciaro-v-travelers-insurance-co-lactapp-1969.