Sherman v. K.D. Auger Trucking, Inc.

607 So. 2d 921, 1992 La. App. LEXIS 3292, 1992 WL 310298
CourtLouisiana Court of Appeal
DecidedOctober 28, 1992
DocketNo. 24144-CA
StatusPublished
Cited by2 cases

This text of 607 So. 2d 921 (Sherman v. K.D. Auger Trucking, Inc.) 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
Sherman v. K.D. Auger Trucking, Inc., 607 So. 2d 921, 1992 La. App. LEXIS 3292, 1992 WL 310298 (La. Ct. App. 1992).

Opinion

BROWN, Judge.

This is a suit for damages arising out of a rear-end collision between a left-turning Dodge van and an 18-wheel tractor-trailer. Plaintiffs appeal, challenging the jury’s apportionment of fault and amount awarded for damages.

FACTS

On February 17, 1989 at 8:00 a.m., plaintiff, Donna A. Sherman (Sherman), was driving a 1979 Dodge van east on Highway 2 in Union Parish when she slowed to make a left turn into the Darbonne Village Grocery Store. Defendant, Grady M. Simms (Simms), was also traveling east on Highway 2 in an 18-wheel tractor-trailer. Before Sherman could turn into the Darbonne Village Grocery Store, Simms’ truck collided with the rear right side of her van.

On August 14, 1989, Sherman and her husband filed suit against Simms, his employer, K.D. Auger Trucking Company, Inc., and Laramie Insurance Company seeking damages for injuries arising from the collision. Subsequently, due to Laramie’s liquidation, Sherman amended her petition to add Louisiana Insurance Guaranty Association (LIGA) and Auger Timber Company, Inc. (dismissed in final judgment).

On September 30, 1991, this matter was tried before a jury. In answer to special interrogatories, the jury found the following:

(1) that the accident caused Sherman to suffer damages;
(2) that Sherman contributed to her own injuries;
(3) that Sherman should be assigned 25% of the fault and Grady Simms should be assigned 75% of the fault;
(4) that Sherman was entitled to: $10,-000.00 for pain and suffering (past), $10,000.00 for mental anguish/loss of enjoyment of life (past), $6,000.00 for medical expenses (past), $2,000.00 for lost earnings (past), and that her husband, G.W. Sherman, was entitled to $1,000.00 for loss of consortium.

On November 4, 1991, judgment was signed in favor of plaintiffs and against K.D. Auger Trucking Company, Inc., Grady Simms and LIGA. In accordance with the jury's verdict, the total award to plaintiffs was reduced by 25% and defendants were ordered to pay damages totaling $21,-750.00.

Plaintiff assigns three errors to the jury’s verdict:

1. The jury clearly erred in finding 25% fault on the part of Mrs. Sherman.
2. The jury was manifestly erroneous in rejecting plaintiffs’ proof that Mrs. Sherman suffered a stroke as a result of the automobile accident.
[923]*9233. The jury abused its discretion in only awarding $6,000.00 for medical expenses when plaintiffs and defendants stipulated that the expenses were $11,949.16.

For the following reasons, we affirm in part and reverse in part.

STANDARD OF APPELLATE REVIEW

Well settled is the legal precept that an appellate court may not set aside a finding of fact by a judge or jury in the absence of manifest error or unless it is clearly wrong. Gibson v. Bossier City General Hosp., 594 So.2d 1332 (La.App.2d Cir.1991), writ denied, 594 So.2d 1332 (La.1992).

In Mart v. Hill, 505 So.2d 1120 (La.1987), the Louisiana Supreme Court described the two part test to be used for appellate review of facts:

1. the appellate court must find from the record that there is a reasonable factual basis for the finding of the trial court [jury], and
2. the appellate court must further determine that the record establishes that the finding is not clearly wrong.

Mart, 505 So.2d at 1127; McLain v. Glenwood. Regional Medical Center, 602 So.2d 240, 242 (La.App.2d Cir.1992). In essence, this test requires a reviewing court to do more than simply review a record for some evidence which supports the trial jury’s finding; it must determine that the record as a whole establishes the fact finder was justified in its conclusion. Housley v. Cerise, 579 So.2d 973, 977 (La.1991).

We are cognizant of the jury’s unique and advantageous position to observe the events at trial and better assess the evidence. It is the jury’s province to resolve conflicting inferences from the evidence. Gibson, supra. Thus, if the jury’s findings are reasonable in light of the record reviewed in its entirety, we may not reverse, even though convinced that had we been sitting as trier of fact, we would have weighed the evidence differently. Sistler v. Liberty Mutual Insurance Co., 558 So.2d 1106, 1112 (La.1990); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

With the above principles in mind, we proceed to review the facts and circumstances in the instant case.

ALLOCATION OF FAULT

On appeal, Sherman complains that the jury erred in allocating the percentages of fault. Specifically, Sherman contends that the jury erred in finding her 25% at fault because she properly signaled her turn, was struck from the rear and did everything possible to avoid the accident. Defendants contend that Sherman did not engage her turn indicator, came to an abrupt stop at the entrance to the grocery store and moved into the path of Simms’ tractor-trailer. Therefore, according to defendants, the jury’s factual conclusion that Sherman was 25% at fault is not manifestly erroneous and should be upheld on appeal.

Every motorist while operating his vehicle has a duty to drive prudently. Roux v. Louisiana Power & Light Co., 597 So.2d 118, 121 (La.App. 5th Cir.1992). This duty requires the driver to maintain a lookout ahead for hazards and to observe any obstructions present and exercise care to avoid them. Moore v. Chrysler Corp., 596 So.2d 225, 237 (La.App.2d Cir.1992), writ denied, 599 So.2d 316, 317 (La.1992). When a following vehicle collides with a preceding vehicle, the following motorist is presumed to be negligent. Cockerham v. U.S. Fidelity & Guar. Co., 559 So.2d 527, 530 (La.App.2d Cir.1990). When this presumption is applied, it effectively shifts the burden of proof to the driver of the following vehicle to prove that he was not negligent. Cockerham, 559 So.2d at 530.

Sherman testified that on the morning of the accident she was on her way to Vo-Tech school and intended to stop at the Darbonne Village Grocery Store to get gasoline. Sherman stated that she activated the van’s left turn signal and was about to turn into the store’s driveway when she heard the squeal of brakes. Sherman observed in her rear-view mirror the 18-wheel tractor-trailer and in an attempt to avoid the accident, moved her vehicle onto the right shoulder of the road way. However, Sherman could not escape the truck’s path and was hit from behind by Simms.

[924]*924Simms testified that he saw Sherman slow down to make a left turn at the first entrance of the grocery store but did not see a left turn signal. Simms testified that Sherman took her foot off the brake and proceeded onward past the first entrance to the second entrance to the grocery store. Simms testified that when he realized he would be unable to avoid the accident, he pulled his tractor-trailer onto the right-shoulder in an attempt to go around the right side of Sherman but struck the rear right side of her van approximately 12 inches off the right shoulder of the roadway.

Trooper Henry Boyles testified that Simms was operating his truck on the wet roadway at 55 m.p.h. when he applied his brakes.

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607 So. 2d 921, 1992 La. App. LEXIS 3292, 1992 WL 310298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherman-v-kd-auger-trucking-inc-lactapp-1992.