Pitts v. Lenz

334 So. 2d 779, 1976 La. App. LEXIS 3406
CourtLouisiana Court of Appeal
DecidedJune 30, 1976
DocketNo. 7422
StatusPublished
Cited by2 cases

This text of 334 So. 2d 779 (Pitts v. Lenz) 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
Pitts v. Lenz, 334 So. 2d 779, 1976 La. App. LEXIS 3406 (La. Ct. App. 1976).

Opinions

MORIAL, Judge.

Plaintiff, Eddie Pitts, appeals from a judgment of the district court dismissing his action for damages against defendants, Mrs. Ethel H. Lenz and her insurer, The Hanover Insurance Company.

On June 10, 1972 at approximately 9:00 A.M. plaintiff and defendant, Mrs. Lenz, were involved in an automobile accident at the intersection of N. Peters and Iberville Streets in the City of New Orleans. N. Peters Street is an undivided two-way street with double yellow striped lines separating the traffic lanes running uptown to Canal Street and downtown to Esplanade Avenue. The street allows two lanes of traffic to move toward Esplanade Avenue while a parking lane in the Canal Street [780]*780bound direction allows only one lane for moving traffic. Iberville Street runs one-way toward the river, and at its intersection with N. Peters, there is a stop sign requiring the vehicles on Iberville to stop and yield the right of way to the vehicles traveling on N. Peters. At the time of the accident, plaintiff was operating his vehicle on N. Peters Street heading toward Canal, while defendant was operating her vehicle in a river bound direction on Iberville Street. Plaintiff was alone in his vehicle. Defendant had one passenger, Mrs. Leona H. Terrebonne.

Plaintiff sued defendants for personal injury and property damages sustained as a result of the accident alleging the sole and proximate cause of the accident to be the negligence of Mrs. Lenz. Defendants in answering the petition denied the allegations of negligence and asserted as an affirmative defense contributory negligence on the part of plaintiff. After trial on four separate days conducted over the course of nearly three months, the trial court, without written reasons, rendered judgment in favor of defendants dismissing plaintiff’s suit at his costs. Plaintiff appeals. We reverse.

Plaintiff contends the record clearly establishes that the sole and proximate cause of the accident was the negligence of Mrs. Lenz in attempting to traverse the intersection at a time when it was obviously unsafe for her to do so.

Defendants contend that plaintiff was contributorily negligent in that he was proceeding at an excessive rate of speed and failed to keep his vehicle under proper control.

A total of five witnesses testified to the facts of the accident. Plaintiff testified that he was proceeding at a lawful rate of speed on N. Peters Street when, as he approached the intersection of N. Peters and Iberville Streets, suddenly and without warning defendant’s vehicle entered his path from Iberville Street at a time and in such close proximity to his vehicle that he could not avoid striking it.

Mrs. Lenz testified that she stopped at the stop sign at the intersection of Iber-ville and N. Peters Streets but could not see clearly due to cars in the parking lane of the Canal Street bound side of N. Peters Street. She stated she then proceeded forward until the front of her car was about even with the parked cars and stopped. She stated she then looked to the left through the windshield of a parked car situated about one car length from the corner, saw nothing, looked to the right, saw nothing, then to the left again, saw a car about a block away, and then assuming it was safe to do so, slowly proceeded forward into N. Peters Street with the intention of making a left turn onto N. Peters. She stated that the accident occurred after she had traveled approximately 12 to 14 feet to a position wherein the rear portion of her car was in plaintiff’s lane and the front portion of her car was across the double yellow lines which divide N. Peters Street. She admitted that she did not brake her vehicle after she began crossing the intersection and that she realized the collision was imminent only after she looked to her left upon hearing the squealing of plaintiff’s brakes. She estimated the speed of plaintiff’s vehicle at 40 to 45 mph stating that when she saw him he was heading for her “real fast” and therefore “he must have been flying.” However, she later stated that she did not really know how fast he was traveling. She stated that the impact of the collision swung her car completely around and damaged it from one end to the other with most of the damage concentrated around the center post on the driver’s side.

James R. Kyle, the police officer who investigated the accident, testified that he did not witness the accident and had no independent recollection of it. However, his report showed that the speed limit on N. Peters Street was 30 mph and that plaintiff told him that his speed before the acci[781]*781dent was 35 mph. The report noted skid marks from plaintiff’s vehicle ranging from 30 to 45 feet and further indicated damage to plaintiff’s vehicle as heavy and damage to defendant’s vehicle as moderate with most of the damage to the rear of the driver’s door. The police report further indicated that the impact of the collision spun defendant’s vehicle around so that if was facing in the direction from which it had come and that plaintiff’s vehicle did not move after impact.

Mrs. Leona H. Terrebonne, defendant’s passenger, testified Mrs. Lenz stopped at the stop sign on Iberville Street then started out and slowed down. She stated she then heard Mrs. Lenz’s brakes squeal, she looked up, and the accident occurred. She testified she had not seen plaintiff’s vehicle before the accident and could not confirm, defendant’s testimony that she had checked for traffic before proceeding.

Plaintiff introduced the testimony of Louis Smith, an independent eye witness to the accident. Mr. Smith testified that he observed the accident from a distance of approximately one quarter block as he was walking on N. Peters toward Iberville Street. He stated the squealing of brakes attracted his attention to the intersection and when he looked up he saw the defendant’s vehicle come out of Iberville Street, proceed into traffic, and the collision occur. He stated he saw the cars before the collision and estimated plaintiff’s speed at between 20 to 30 mph.

Although he provided no written reasons for judgment, the trial judge apparently concluded plaintiff had been traveling at an excessive rate of speed and accordingly dismissed plaintiff’s suit based upon application of the rule which states:

“. . . that a motorist who enters the intersection of the right of way street from a less favored street, may upon observing the yield or stop sign, then proceed across the favored street or turn into the favored street and assume that vehicles on that street will observe the speed limit. . . .” Camet v. Guillot, 291 So.2d 438 (La.App. 4 Cir. 1974).

While we recognize that the factual findings of the trial judge are entitled to great weight, based upon our careful review of the record we believe the conclusions he apparently reached are manifestly erroneous.

As previously stated, the trial was conducted in a piecemeal fashion over an extended period of time. An examination of the physical facts of the accident bears no indication that plaintiff was traveling at an excessive rate of speed. Plaintiff never lost control of his vehicle. Plaintiff’s skid marks were in a straight line and his vehicle stopped immediately upon impact. Furthermore, the testimonies of the witnesses do not indicate any excessive speed or lack of control. Mrs. Lenz’s testimony was extremely equivocal on the question of speed and she finally admitted that she really did not know how fast plaintiff’s car was traveling.

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Related

Worsham v. Hanover Insurance Co.
378 So. 2d 1060 (Louisiana Court of Appeal, 1979)
Pitts v. Lenz
338 So. 2d 705 (Supreme Court of Louisiana, 1976)

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Bluebook (online)
334 So. 2d 779, 1976 La. App. LEXIS 3406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pitts-v-lenz-lactapp-1976.