Sanders v. Eilers

217 So. 2d 205
CourtLouisiana Court of Appeal
DecidedDecember 16, 1968
Docket7481
StatusPublished
Cited by9 cases

This text of 217 So. 2d 205 (Sanders v. Eilers) 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
Sanders v. Eilers, 217 So. 2d 205 (La. Ct. App. 1968).

Opinion

217 So.2d 205 (1968)

Henry SANDERS et ux., Plaintiffs-Appellants,
v.
Frederick J. EILERS et al., Defendants-Appellees.

No. 7481.

Court of Appeal of Louisiana, First Circuit.

December 16, 1968.

*207 William D. Hunter, of Lippman & Hunter, Morgan City, for plaintiffs-appellants.

Norman P. Foret, of McBride & Brewster, Lafayette, for defendants-appellees.

Before LOTTINGER, ELLIS and BAILES, JJ.

BAILES, Judge.

Plaintiffs, Henry and Brenda Sanders, husband and wife, brought this suit against Frederick J. Eilers and the public liability insurer of his 1961 Thunderbird automobile, State Farm Mutual Automobile Insurance Company, seeking damages for personal injuries and medical expenses incurred as the result of an automobile accident. The accident occurred in Morgan City, Louisiana, on U.S. Highway 90, a four lane roadway, when Brenda Sanders was allegedly run over by defendant Eilers' vehicle while she was lying unconscious in the outside or right hand lane of the two eastbound traffic lanes. She had been knocked unconscious when she fell or jumped from the automobile in which she was a passenger.

Plaintiffs alleged negligence on the part of the defendant driver in several specifics which in substance may be generalized as failure to maintain a proper lookout and proper control of his vehicle, driving while under the influence of intoxicants and driving at an excessive rate of speed. Defendants, in answer, denied negligence on the part of Eilers and by way of further answer alleged that the Eilers vehicle did not come into contact with Brenda Sanders, or alternatively, if there was contact, that the plaintiff's damages resulted solely from the negligence of Brenda Sanders or recovery by plaintiffs was barred by the contributory negligence of Brenda Sanders, either type of negligence being imputable to Henry Sanders inasmuch as he and his wife were engaged on a community mission.

Judgment was rendered in favor of the defendants. Plaintiffs perfected this devolutive appeal relying solely on the applicability of the doctrine of last clear chance to the facts of this case. This doctrine, of course, is not applicable in the absence of negligence in the conduct of the defendant. The trial court, in its reasons for judgment, stated: "* * * there is no showing that Mr. Eilers was actionably negligent * * *." We are unable to detect manifest error in this finding and rest our affirmation of the judgment appealed from on it.

The accident occurred at approximately 1:00 o'clock on the morning of April 11, 1965, on U.S. Highway 90, which at the point in question is a straight, four lane, blacktop highway running generally east and west, with a posted speed limit of 45 mph. The highway was heavily traveled even at the early morning hour when this accident happened. The impact occurred, as one moves eastward, at a point between a stop light at the intersection of Myrtle Street and Highway 90 and the road side sign of Guarisco Motors, Inc. The night, though clear, was moonless and there were no street lights along the roadway. The only light in the area was that provided by the large Guarisco sign, which, at most, was very ineffective in lighting the highway.

The plaintiffs, after leaving a local night spot, were traveling east in the inside lane of Highway 90. Prior to reaching the Guarisco sign Brenda Sanders fell or jumped *208 from her automobile, landed in the outside or right hand eastbound traffic lane and was knocked unconscious. She is a brunette and was, on this night, dressed completely in black. Defendant Eilers, also traveling east, was in the outside lane. He approached the unconscious plaintiff a short time after she had fallen and ran over her.

The defendants contended that the Eilers' vehicle did not hit Mrs. Sanders inasmuch as she was lying parallel with the roadway in the center of the outside traffic lane and Eilers was able to pass over her body without contact. However, the preponderance of the evidence is to the effect that Mrs. Sanders was lying on her back before the accident and after the passage of the Eilers vehicle was perpendicular to the course of the roadway, face down. Moreover, the physical evidence at the scene leads to the conclusion that the Eilers' vehicle pushed or dragged Mrs. Sanders some 26 feet east of the point at which she came to rest after jumping or falling from her car.

Neither can the negligence of Mrs. Sanders be seriously questioned. Though Mrs. Sanders testified that she did not remember anything that transpired after she entered the automobile upon leaving the night club, the record conclusively shows that she, in fact, jumped from the moving vehicle in which she was a passenger. Mr. Sanders testified that an argument was in progress as he and his wife were proceeding along the highway; in the course of that argument his wife threatened to jump from the automobile and the next second she was no longer seated beside him. On this appeal, appellants unequivocally admit the negligence of Mrs. Sanders.

Mr. Sanders and Mr. Eilers were the only eyewitnesses to the accident. Mr. Sanders testified that after leaving the Dream Lounge he drove his car eastward in the inside lane of Highway 90. He passed the Myrtle Street stop light without stopping, driving at a speed of 35-45 mph. When his wife jumped from the car he slammed on his brakes, stopped, put his transmission in the park position, got out and went to his wife who was lying unconscious a few feet to the rear of his stopped automobile. He was afraid to move her, not knowing the extent of her injuries, so when he saw the lights of an oncoming car he began to run westward down the center line of the two eastbound traffic lanes waving his hands. He stated that he was 150 feet from his vehicle when the oncoming vehicle passed him. The brakes of that car were applied immediately after it passed him, but Mrs. Sanders was hit. Mr. Sanders testified that it was a "very short time" between the time he got out of his car and the time his wife was hit.

Mr. Eilers testified that he left the Elbow Room night club at about 1:00 a.m. and was driving east in the outside traffic lane of Highway 90. He stopped at the Myrtle Street stop light for approximately 30 seconds but due to the bright lights of westbound traffic and his attention to the stop light he did not see the Sanders automobile ahead of him though he was looking eastward along the highway. As he left the stop light he accelerated to approximately 35 mph and then saw the Sanders' automobile silhouetted against the oncoming headlights. He was 100-125 feet from the vehicle. He saw Mr. Sanders moving around the left side of his car toward the rear when he was 80-85 feet from the automobile. He removed his foot from the accelerator. Sanders began waving his hands so he applied his brakes, believing that Sanders was "waving me off his car." Sanders' waving became more frantic so he locked his brakes and began sliding straight forward. He saw Brenda Sanders when he was only 25-30 feet away from her. All that he could do was to attempt to straddle her body. He testified that he could not say whether his usual reaction time was affected by the drinks he had consumed earlier.

Certain physical facts were established by the testimony of the officers of the Morgan City Police Department who investigated *209 the accident. The skid marks left by both vehicles were measured. The plaintiffs' car left 55 feet 10 inches of skid marks in the left hand eastbound traffic lane.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Whittington v. American Oil Co.
508 So. 2d 180 (Louisiana Court of Appeal, 1987)
Ryan v. State
477 So. 2d 110 (Louisiana Court of Appeal, 1985)
Courtade v. Tucker
421 So. 2d 375 (Louisiana Court of Appeal, 1982)
Mitchell v. Sigrest
345 So. 2d 141 (Louisiana Court of Appeal, 1977)
Fontenot v. Southern Farm Bureau Casualty Ins. Co.
304 So. 2d 690 (Louisiana Court of Appeal, 1975)
Epperly v. Kerrigan
275 So. 2d 884 (Louisiana Court of Appeal, 1973)
Dufrene v. Miller
266 So. 2d 462 (Louisiana Court of Appeal, 1972)
Mabile v. Thibaut Farms
244 So. 2d 66 (Louisiana Court of Appeal, 1971)
Corkern v. McWilliams
228 So. 2d 236 (Louisiana Court of Appeal, 1969)

Cite This Page — Counsel Stack

Bluebook (online)
217 So. 2d 205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sanders-v-eilers-lactapp-1968.