Simmons v. Mid-State Sand & Gravel Co.

196 So. 2d 646, 1967 La. App. LEXIS 5633
CourtLouisiana Court of Appeal
DecidedMarch 21, 1967
DocketNo. 1934
StatusPublished

This text of 196 So. 2d 646 (Simmons v. Mid-State Sand & Gravel Co.) 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
Simmons v. Mid-State Sand & Gravel Co., 196 So. 2d 646, 1967 La. App. LEXIS 5633 (La. Ct. App. 1967).

Opinion

FRUGÉ, Judge.

The plaintiffs, the widow and surviving child of Gilbert Junior Chaney, brought suit in the district court against Mid-State Sand and Gravel Co., Inc., and its insurer to recover for Gilbert Chaney’s alleged wrongful death. The trial judge dismissed the suit and the plaintiffs have appealed to this court.

In June, 1962, Gilbert Chaney, then 24 years of age, was employed by Alvin War-mack as a truck driver on a road construction project. At the time of his death he was driving a tandem gravel truck and trailer of 15-yard capacity back and forth between the Thomas gravel pit near Wilda, Louisiana, and the jobsite. This gravel pit and the area where the accident occurred is, by lease or similar arrangement, under the control of Mid-State Sand & Gravel Company, Inc., the defendant herein. The accident occurred on a winding graveled road which runs between Wilda and the Simpson-Seiper road. The defendant employs a segment of this graveled road as a means of ingress and egress to its gravel pit operations but because the road’s surface suffers from heavy pounding by the trucks and equipment, the defendant maintains portions of the road at its own expense. This maintenance consists of periodic additions of gravel to the surface and frequent grading by the defendant’s motor grader. At the point where Gilbert Chaney was killed, the road bed spans a shallow gulley, damming the water on the higher side of the gulley and forming a small pond several feet in depth and adjacent to the road for several hundred yards. —

The record establishes that the road in question is some 24 to 26 feet in width, with a 17 to 18 foot packed gravel surface and 3-foot dirt shoulders on either side. Approximately 100 feet from where the accident occurred, the road widens considerably and the truck drivers hauling gravel from the defendant’s pit customarily use this area to allow free passage of loaded trucks, the practice being for the returning empty trucks to pull into the widened area and park, thus allowing the loaded outgoing trucks the full width of the roadway on which to travel.

On the morning of the accident, Gilbert Chaney drove his empty truck into the de[648]*648fendant’s gravel pit where the truck was loaded with some 15 yards of pit ran gravel weighing approximately 50,000 pounds. After his track was loaded, Chaney drove out of the pit area proper and onto the above described roadway, the pond being on Chaney’s left as he proceeded from the pit Some 250 feet from the pit area, the defendant’s roadgrader was traveling upon the gravel road also away from the pit, so that the Chaney track was approaching the roadgrader from the rear. Chaney was alone at the wheel of his truck at the time and, as the locus of the accident was screened from the view of the men working in the pit area, the only person who witnessed the actual accident was William Ward, the operator of the roadgrader. Mr. Ward testified that he was driving the grader along the dam or fill section of the road and because he was not grading at that time, the blade of the motor grader was raised and turned lengthwise beneath the grader. He stated that at this angle the blade projected only slightly beyond the wheels of the machine, if at all, and that, with the blade in this position, the grader is approximately 8 feet wide. He further testified that he was traveling on the right side of the road and as he neared the widened area he noticed the Chaney truck approaching from the rear. On cross examination by plaintiffs’ attorney, Mr. Ward related his version of the ensuing events:

“Q Immediately before this accident happened, did you see the truck driven by Gilbert Chaney coming from the — approaching from the rear?
A I seen the track coming but I didn’t know who it was, nothing about it.
Q Well I am referring to the same track that turned over in the pond.
A That’s right.
Q You saw that through the rear view mirror ?
A That’s right.
Q You didn’t turn around to look at it:
A Ho, sir.
Q At that time?
A No, sir.
Q As soon as you saw him approaching from the rear in the — I’ll ask you another question — Were you able to tell how far he was behind you when you saw him in this mirror ?
A No, sir.
Q As soon as you saw his truck in the rear view mirror approaching you you quickly pulled to the righthand ■ side of the road didn’t you?
A I probably was on the right hand side but it was a narrow place and I went on — I tried to go on up to the wide place and did. And stopped.
******
Q You say you moved on to a wider point in the road before you stopped ?
A That’s right.
Q Did you stop your grader when you reached that point?
A Yes, sir.
Q It was only then that you looked around is that right?
A That’s right.
Q When you looked around what did you see?
A I seen the truck in the water turning over.
******
Q After you saw the truck in your rearview mirror, then you directed your attention to the road ahead and where you were guiding the grader didn’t you ?
A That’s right.
Q So that from the time you saw him until he went into the water you' don’t know how far he traveled ?
A No, sir.
[649]*649Q And you don’t know perhaps whether or not his truck had stalled or stopped before it caved into the water?
A No, sir.
Q After you looked back and saw his truck going into the water what did you do?
A I jumped out and immediately ran back there to see if I could see him come out and went to hollering for somebody to assist and to find out about the truck being turned over.”

There was no other eyewitness who could testify as to the manner in which the accident occurred. However, numerous photographs filed in the record show that the truck driven by Gilbert Chaney veered to the left and toward the pond until the left wheels of both the tractor and trailer were very near the edge of the drop-off and entirely upon the shoulder of the road. At this point the left wheels sank into the shoulder under the pressure of the load and the overbalanced truck toppled over into the pond, trapping Gilbert Chaney in the cab and drowning him.

In brief the plaintiffs argue that the accident occurred as Gilbert Chaney attempted to pass the roadgrader which was traveling on the right side of the road and that the left edge of the roadway collapsed beneath the left wheels of Chaney’s truck, thus causing the truck to overturn.

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

Cite This Page — Counsel Stack

Bluebook (online)
196 So. 2d 646, 1967 La. App. LEXIS 5633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-mid-state-sand-gravel-co-lactapp-1967.