Smithers v. State Farm Mutual Automobile Insurance Co.

286 So. 2d 433, 1973 La. App. LEXIS 5717
CourtLouisiana Court of Appeal
DecidedNovember 13, 1973
DocketNo. 12168
StatusPublished
Cited by1 cases

This text of 286 So. 2d 433 (Smithers v. State Farm Mutual Automobile Insurance 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
Smithers v. State Farm Mutual Automobile Insurance Co., 286 So. 2d 433, 1973 La. App. LEXIS 5717 (La. Ct. App. 1973).

Opinion

PRICE, Judge.

This is an appeal from a judgment awarding damages for personal injuries and related expenses to the plaintiff in a tort action arising out of an intersectional collision. The issues projected on this appeal concern the correctness of the trial court’s determination of negligence, whether plaintiff’s injuries are causally related to the accident, and the adequacy or exces-siveness of the amount awarded by the trial judge.

Jesse J. Smithers filed this action under the direct action statute against State Farm Mutual Automobile Insurance Company, the liability insurer of a vehicle owned and being driven by Rex L. Livingston. Smithers contends that at about 9:30 a. m. on June 25, 1970 he was driving his 1960 Chevrolet pickup truck easterly on Southern Avenue in the City of Shreveport, and as he entered the intersection with Fairfield Avenue his truck was struck on the left front by the automobile being driven by Livingston in a southerly direction on Fairfield.

Plaintiff alleges the accident resulted from the negligence of Livingston in failing to stop for a red traffic light; failing to maintain proper control over his vehicle; not maintaining a proper lookout; and driving at an excessive speed.

State Farm contends in answer to plaintiff’s petition that their assured, Livingston, entered the intersection on a green light which changed to caution just after his entry, and that the plaintiff drove his truck into the intersection without allowing Livingston an opportunity to clear the intersection. Defendant thus denies negligence on the part of Livingston and alleges the collision resulted from the negligence of Smithers in not maintaining a proper lookout and entering the intersection without allowing the Livingston vehicle ample opportunity to clear same. Plaintiff is further accused of negligence in entering into the intersection at a time his view was blocked by a truck parked to his left.

These acts of negligence defendant contends are the sole, or at least a contributing proximate cause of the accident, barring plaintiff’s recovery.

The trial judge resolved the question of fault in plaintiff’s favor and we find no error in his conclusion.

To the west of the intersection Southern is a four-lane thoroughfare with two lanes for eastbound traffic. It intersects Fair-field at an angle. Fairfield, north of the intersection, is also a four-lane thoroughfare with the two southbound lanes merging into a single lane immediately to the south of the intersection. Traffic is controlled by electric control signals.

The evidence shows that just prior to the collision plaintiff was stopped in the [435]*435outside curb lane of Southern waiting for the red traffic signal facing him to change. A large flat-bed truck was stopped to his left in the inside lane also awaiting the signal light. Plaintiff testified that after the light changed to green he accelerated in a normal manner and after moving a short distance into the intersection he glanced to his left and noticed a car coming from that direction about to collide with him. He applied brakes and stopped but was unable to prevent the other car from striking the left front of his truck. He could not see the other vehicle until it was some six feet from him because of the large truck to his left.

The driver of the truck and a passenger therein each testified on behalf of plaintiff. Their testimony is substantially corroborative of plaintiff’s version of the accident. This vehicle had also started to move into the intersection when the driver noticed the Livingston car was coming into the intersection to the left and was forced to stop to avoid a collision.

Although Livingston’s testimony is to the contrary, we find the preponderance of the evidence establishes that he entered the intersection on a red light in violation of the traffic control signal. Nor do we find any negligence on the part of Smithers in proceeding into the intersection under the circumstances presented herein. The truck to his left started to move with the change of the light to green, indicating to plaintiff the intersection was clear to his left. He proceeded at a reasonable rate of speed from a stopped position on a favorable green light. He could assume vehicles proceeding on Fair-field would obey the control light commanding them to stop and yield the right-of-way to traffic flowing with the favorable light on Southern. The evidence further indicates he promptly applied brakes and made every attempt to avoid the collision upon discovering the vehicle moving into his path. We therefore affirm the trial judge’s conclusion that Livingston’s negligence was the sole proximate cause of this accident.

As a result of the accident plaintiff contends he suffered a sprain of the cervical area and trapezius muscles and the herniation of an intervertebral disc in his lumbar spine. There is no question that the accident caused plaintiff to sustain a moderate sprain affecting his neck and right arm which fully recovered with medical treatment.

The most serious question presented on this appeal concerns the causal relationship of the accident to the lumbar back injury for which plaintiff claims substantial damages as it has necessitated plaintiff submit to two operative procedures for correction and has resulted in a partial permanent disability.

Although the trial judge did not give written reasons for judgment, he apparently found the herniation of the disc in plaintiff’s back was caused by the accident as a total of $27,500 was awarded plaintiff for damages arising out of the accident.

Defendant contends the evidence does not prove to the degree of legal certainty required under the jurisprudence that there is a causal connection between the accident and plaintiff’s lumbar back injury because plaintiff made no complaints of back or leg pain to his treating physicians until approximately four weeks after the accident. Defendant further contends the testimony of plaintiff’s medical witnesses does not establish to a medical certainty that a causal relationship existed, and it is improbable that plaintiff could have sustained sufficient trauma from the slight degree of impact involved in this collision to have caused a herniated disc.

The evidence in the record shows that the date of the accident plaintiff sought treatment during office hours from Dr. D. R. Martin, a general practitioner, for pain in the cervical area. He was given pain relieving medication and instructed to rest for the remainder of the day. Plaintiff, [436]*436who worked an evening shift at the AMF Beaird plant, reported to work in the late afternoon. He was unable to work and after reporting to first aid at the plant, he sought treatment at the emergency room if Bossier General Hospital where he was seen by Dr. W. W. Fox, an orthopedic surgeon. He was hospitalized that night and treated for a sprain of the cervical area and the trapezius muscles by traction and physical therapy. Plaintiff was discharged from the hospital on July 2nd. Although he visited Dr. Fox on July 7, the first complaint of back pain radiating into the left leg was on July 27, according to the notations made by Dr. Fox in plaintiff’s medical records.

Plaintiff next visited Dr. Fox on November 3, 1970, again complaining of back and leg pains. During the eight week interim from his July 27th visit, he had sought treatment from a local osteopath and had been examined by his employer’s physician, Dr. Keith Mason. Neither of these medical practitioners were called to testify.

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Related

Hardie v. Pylant
375 So. 2d 189 (Louisiana Court of Appeal, 1979)

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Bluebook (online)
286 So. 2d 433, 1973 La. App. LEXIS 5717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smithers-v-state-farm-mutual-automobile-insurance-co-lactapp-1973.