Security Timber & Land Co. v. Reed

398 So. 2d 174, 1981 La. App. LEXIS 3888
CourtLouisiana Court of Appeal
DecidedApril 15, 1981
DocketNo. 8170
StatusPublished
Cited by1 cases

This text of 398 So. 2d 174 (Security Timber & Land Co. v. Reed) 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
Security Timber & Land Co. v. Reed, 398 So. 2d 174, 1981 La. App. LEXIS 3888 (La. Ct. App. 1981).

Opinion

SWIFT, Judge.

This is an appeal from a trial court judgment awarding plaintiff property damages sustained in a rear-end collision allegedly caused by defendants’ negligence.

The facts are relatively undisputed.

The accident occurred on May 23,1979, at about 3:15 p. m. on Louisiana 10 just east of Oakdale. A Ford pickup truck owned by Boise Southern Company and driven by Boise’s employee, Charles Fuselier, was proceeding eastward. Following the pickup truck was a Chevrolet tractor-truck pulling a low-boy trailer. This rig was owned by Security Timber and Land Company (Security) and driven by its employee, William H. Sampsel, in the course of his employment. Sampsel was following Fuselier to deliver a load of lumber to the latter’s home. Traveling behind both of these trucks was a car and a Ford butane tank truck owned by Reed, Inc. and driven by Anthony D. Reed.

As the trucks began to negotiate a curve in the highway Reed began to pass the automobile driven by Odlie Strother and the two preceding trucks in a no-passing zone. Fuselier observed this maneuver in his rear view mirror. He also saw an unidentified automobile approaching in the opposite lane of travel. Fearing that the butane truck would not have a sufficient length of time in which to pass his pickup and the trailer truck, Fuselier removed his foot from the accelerator and his velocity decreased from about 40 to approximately 25 miles per hour when he was struck in the rear by Security’s truck. He testified that he was fixing to apply his brakes slowly and pull over to the right shoulder to avoid an accident but he did not recall actually putting on the brakes then.

[176]*176In the meantime the approaching vehicle pulled halfway into the ditch on his right and the butane truck passed between the pickup and the automobile and continued on Highway 10.

Mr. Sampsel was thought to be in Alaska and did not testify. However, he told Mr. Fuselier after the accident “that he was occupied looking” at the truck trying to pass and was “worried” as he didn’t know what was going to happen. Fuselier said Sampsel had apparently seen the oncoming car also.

The investigating police officer testified the brakes on the trailer had not been hooked up and Sampsel told him that when he put on the brakes of his tractor the “load pushed him down the road” to where he hit the Fuselier truck. Sampsel’s unit traveled approximately 222 feet from the point of impact before stopping.

Security filed this suit against Reed, Inc. and its driver for damages to its truck and lumber. The principal defense is that plaintiff’s driver was contributorily negligent.

After trial on the merits the judge ruled for the plaintiff and opined that a sudden emergency arose when Reed attempted the illegal passing maneuver which excused Sampsel’s failure to react because the dangerous situation diverted his attention. The trial judge stated:

“Under these circumstances a momentary lapse of attention is possible. It is also significant that Fuselier did not apply his brakes or give any signal that he was slowing down suddenly. The court does not believe that the failure to hook up the trailer brakes was the cause of the accident.”

Defendants contend that the trial court was manifestly in error in applying the rule of sudden emergency to the facts of this case and that recovery is barred by the contributory negligence of Sampsel and also Security. We agree.

The doctrine of sudden emergency has been stated by our supreme court in Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (La.1972), as follows:

“One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.”

In Dick v. Phillips, 253 La. 366, 218 So.2d 299, 302 (La.1969) the court said:

“Although Phillips invokes the doctrine of sudden emergency to exculpate himself from a charge of negligence, the doctrine is not available to him. The rule of sudden emergency cannot be invoked by one who has brought that emergency on himself by his own wrong or who has not used due care to avoid it. The sudden emergency doctrine is applicable to the standard of conduct of a motorist after an emergency has arisen, it does not apply to lower the standard of care required of motorists before the emergency occurs. 2 Blashfield, Automobile Law and Practice § 102.28 (3rd ed. 1965). See also Noland v. Liberty Mutual Insurance Company, 232 La. 569, 94 So.2d 671 (1957).”

The doctrine is further qualified as follows:

“Parenthetically we note that the defense of sudden emergency is not available if the motorist fails to exercise the degree of care that a prudent person would use to extricate himself from the situation.”

Potts v. Hollier, 344 So.2d 70, 71 (La.App. 4 Cir. 1977).

Thus, while a sudden emergency will excuse the failure to exercise a choice that in light of after events might not have been the best and may otherwise have been negligent, the motorist must still use the care that a prudent person would to extricate himself from the situation. And, of course, the doctrine does not apply to an emergency brought about by the driver pleading same. Nor does it lower the stan[177]*177dard of care required of motorists before the emergency occurs.

It is obvious that Mr. Reed was patently negligent in passing the preceding vehicles in a no-passing zone. However, it is equally clear that Mr. Sampsel was contributorily negligent unless a proper sudden emergency existed.

The primary duty imposed on a motorist in the safe operation of a vehicle is to keep a sharp lookout in the direction in which he is proceeding in order to discover the presence of a possible danger. Weber v. Phoenix Assurance Company of New York, 273 So.2d 30 (La.1973). And a motorist is presumed to have seen what he should have seen. Baumgartner v. State Farm Mutual Automobile Insurance Company, 356 So.2d 400 (La.1978). Also, a motorist is presumed to have been negligent if he collides with the rear end of a vehicle preceding his vehicle. Jones v. Meinke, 357 So.2d 838 (La.App. 4 Cir. 1978); Tidwell v. Ocean Systems, Inc., 356 So.2d 466 (La.App. 1 Cir. 1977).

La.R.S. 32:341 requires a truck and trailer, as was driven by Sampsel, to possess working, separate brake systems. A violation thereof not only gives rise to a presumption of negligence, but the owner and operator of the vehicle with faulty brakes are strictly liable to a party whose automobile is rear-ended thereby. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The Fuselier vehicle was in plain view ahead of Sampsel. It was not stopped suddenly, but instead its speed was simply reduced from about 40 miles per hour to approximately 25 miles per hour at impact without application of brakes by the driver releasing the accelerator.

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398 So. 2d 174, 1981 La. App. LEXIS 3888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/security-timber-land-co-v-reed-lactapp-1981.