Phillips v. Insurance Co. of North America

181 So. 2d 446, 1965 La. App. LEXIS 3782
Louisiana Court of Appeal·Decided December 21, 1965·No. No. 10492·Published

Opinion

GLADNEY, Judge.

This action in tort seeks recovery for personal injuries and community expenses allegedly sustained as a result of an accident involving plaintiffs’ automobile at the Kroger Shopping Center in Bossier City on the night of February 22, 1964. Plaintiffs, Dorothy E. Phillips and Claude B. Phillips, husband and wife, named as defendants W. L. S. Investment Company, Inc., owner of the center and its liability insurer, Insurance Company of North America. After trial judgment was rendered in favor of plaintiffs and defendants have lodged this appeal.

On the night aforesaid Mrs. Phillips, alone in her automobile, drove into the southwest entrance of the large parking area which surrounds the establishments located therein to go to Naremore’s Drug Store located on the opposite side of the parking area. After proceeding some distance at a rate of speed which she estimated to be some ten to fifteen miles per hour, her automobile ran over a six inch curb and dropped approximately eighteen inches to the unpaved bed of a railroad spur track which bisected the parking area. Except for several paved crossings spaced at intervals of approximately thirty feet, the right-of-way is unpaved leaving unpaved1 “pockets” or “islands”, the surface of which was eighteen inches below the paved surface of the parking area. Separating the “islands” from the parking area are curbs painted yellow six inches in height above the pavement. The parking area is marked with yellow lines to delineate parking spaces- and passageways for vehicular traffic. The traffic lanes which lead across the right-of-way do not line up with the lanes on the opposite side and thus create offsets. Near the locus of the accident are two lights each approximately sixty feet from the point where the automobile ran into the unpaved portion of the right-of-way.

[448] Mrs. Phillips testified that she drove her automobile into the parking area with the intention of going to Naremore’s Drug Store for the purpose of having a prescription filled; that it was the first time foi her to enter from this portion of the parking area and, as she was unaware of the danger created by the spur track, she assumed she could proceed safely to her destination; that she did not see the curbing nor the “islands” in the right-of-way and suddenly her automobile dropped from the pavement to the unpaved portion of the railroad track. The entire length of the automobile entered the “island” with its bumper resting against the edge of the pavement on the opposite side of the spur track.

Appellants argue that the trial court erred in finding the defendants negligent and in failing to sustain their special plea of contributory negligence, which primarily charges that Mrs. Phillips failed to see that which she should have seen and failed to have her automobile under proper control. It is contended that the area was properly designed and that if Mrs. Phillips had been making proper observation she would not have failed to observe curbs painted yellow which were placed for the purpose of obstructing any vehicle attempting to enter the unpaved portions of the spur track.

In assessing fault against the defendants the trial judge appropriately disposed of the contentions urged by the appellants and we approve of his findings, parts of which we quote:

“We have no difficulty in finding as a matter of fact that the existence of a hole in a broad concrete parking lot, a hole measuring twenty feet across by forty feet in length located in such a way that the holes alternated with crossings over a concrete parking lot constituted the construction of a trap. The only guard between the parking lot and the hole, the railroad track, was a yellow curb six inches high.

“The maps that have been drawn may not accurately indicate the relative locations of these holes in the parking lot with their position to the traffic lanes or traffic lanes as designed by the architect or engineers. Nevertheless, the evidence is that there were no other automobiles in this parking lot; that it was at night time, and that the only markings in the area besides the yellow concrete curb around these holes and the yellow curb around the light standards were yellow lines for the purpose of locating parking in this portion of the parking lot. There were no curbs, according to the testimony, to govern the flow of traffic in this portion of the parking lot. There was no well delineated or well lighted or well designed traffic lane or thoroughfare which led across a marked opening or a marked crossing across the spur track.

“One thing to consider in deciding whether or not a construction is negligent is the difficulty of making a construction that would be adequate warning to any and all persons as a danger alert beyond a certain line. In this case it would have been a fairly simple and relatively inexpensive matter to have constructed a barricade similar to any kind of barricade that is frequently seen in many places, such as a highway, a barricade used during the construction of highways to indicate to persons that this was no thoroughfare in this place across the spur track. The existence of certain parking lanes all drawn in yellow could very easily have confused a stranger at night. And there was no other warning than the yellow line to indicate that there was something beyond this curb. If the curb itself had been the only obstacle in plaintiff’s path no doubt there would have been no accident and no injury. Many people run over curbs without anything further, any further incident. The damage was done in this case by the contents of the island, the thing that was in between these curb lines, an eighteen inch drop on one side of the curb, cross-ties, we suppose, and railroad tracks on the spur track, and another specific drop on the other side of the spur track. In the course of driving it can be anticipated in any area where there are automobiles being driven by people who are [449] familiar or not with the area that automobiles are likely to travel wherever they can travel and will run over curb lines unless they are adequately marked. A reasonable person would have to believe that sooner or later in daylight or dark someone would put his automobile over this curb line into the place where Mrs. Phillips put her automobile.

“Therefore, we find that, since it is foreseeable that a driver was likely to jump the curb, and, since it would have been relatively easy and inexpensive to avoid this probability, the defendant was negligent in constructing and maintaining this crossing in the manner in which the plaintiff found it. We, therefore, find liability against the defendant and for the plaintiff.”

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Phillips v. Insurance Co. of North America, 181 So. 2d 446, 1965 La. App. LEXIS 3782 (La. Ct. App. 1965).

181 So. 2d 446 (Phillips v. Insurance Co. of North America) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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