Sparks v. Hanagriff

131 So. 302, 15 La. App. 553, 1930 La. App. LEXIS 119

• Court: Louisiana Court of Appeal
• Decided: December 1, 1930
• Docket: No. 707
• Status: Published

Opinions

MOUTON, J.

At the request or invitation of Mr. Hanagriff, defendant, Miss Sparks, plaintiff, Miss' Pitts, and Mr. Smith, Sunday morning, June 16, 1929, had gone out on a fishing trip a few miles from the city of Baton Rouge. On their way back, about 4:30 in the afternoon, while driving over the Port Allen highway, the auto in which the parties were riding was turned over and was practically demolished. Miss Sparks was severely injured, and brings this suit for- damages against Mr. Hanagriff, who was driving the car.

The lower court rejected the demand, Miss Sparks appeals.

The defendant, it is shown, passed ahead of several cars, and, in trying to pass ahead of an auto which Mr: Gunn was driving, defendant’s auto ran into some loose gravel, causing it to capsize, and inflicting the damages complained of.

Hanagriff, the defendant, says that Mr. Gunn was ahead of him; that, when approaching his car to pass ahead, he blew his horn twice; that Mr. Gunn was driving practically in the middle of the road and swerved to his right; that he had “plenty of room to go by him,” but that Mr. Gunn abruptly turned his car to the left, and, to avoid hitting him, he then swerved his auto to the left, and, in attempting to straighten his car, he applied his brakes, the ear went into the ditch and was overturned.

Defendant says he had 10 or 12 feet to pass on the left side of the .Gunn auto of which there was about 3 feet of loose gravel, extending from the ditch to the hard surface part of the gravelled roadway. He was traveling, according to his testimony; between 40 and 45 miles an hour.

Mr. Gunn says he was coming toward Port Allen; he imagines between 40 and 45 miles an hour, that he was first apprised of something behind him by a scuffling noise in the gravel, when one of the ladies who was riding with him said: “My God! There is a car turned over.”

He testifies positively that he did not hear the sounding of a horn by Hanagriff, and he is also certain that he was traveling at the time on the right side of the road. He was then asked the following questions, and gave the answers thereto, which we shall quote:

“Q. Did you at any time leave the right-hand side of the road?

“A. Not that I remember.

“Q. Ought not you to remember that proposition?

“A. Yes. If I had seen anything to cause me to swerve I would remember it.”

After counsel stated to him that he wanted to know definitely whether he had veered over into the left side of the road, Mr. Gunn said:

“No, sir, not to the left side of the road. I was driving on the right.”

After he had stated that he had “plenty of room” to pass without running into the loose gravel, counsel then propounded to him this question :

“Q. Mr. Hanagriff has just sworn that you turned sharply to the left and ran into the left side of the road. What have- you to say to that?

“A. I don’t think I did.”

Then upon being asked if he was not positive that he had not veered to his left side, abruptly, he answered, “Yes”; he was.

It will be observed that Mr. Gunn was certain that he had not heard Hanagriff blow his horn, and was positive that he was driving on the right-hand side of the road. He was, however, in doubt, at first, and could not remember if he had at any time left the right-hand side and as to whether he had seen anything ahead to cause him to swerve to his left. Again when he is asked if he had turned to his left, he answers: “I don’t think I did.” He finally, upon being pressed by counsel for plaintiff, gives definite answers to the questions asked, as hereinabove stated.

Then again, when asked if a lawyer had not advised him that he could be held liable if he had caused the accident, he answers :

“I don’t think he di.d; I do not remember.”

Mr. Smith, witness for plaintiff, was sitting on the back seat of the Hanagriff car. He says:

“•When I noticed anything in particular was when Mr. Hanagriff applied his brakes, and the ear was very near the car he was attempting to pass.”

He testified that, as he was sitting on the rear seat, he could not say if the Gunn car had abruptly turned to che left, and that he was not paying any attention to what was going ahead. There is nothing in the foregoing statement of that witness to contradict the testimony of Hanagriff, above quoted, to the effect that Gunn had abruptly swerved to his left, which compelled him to apply his brakes, and caused the turnover in the loose gravel. The fact is that Smith said in his testimony that, when Hanagriff’s car was near the other when he was attempting to pass ahead of it, that he applied his brakes, and that the rear portion of his car was tangled up in the gravel, and rolled over in the ditch. This latter statement agrees precisely with the way Hanagriff described the capsizing of his car.

Counsel for plaintiff, after stating to his witness Smith that he presumed he had heard when Hanagriff had said that Gunn’s car swerved to the left just as he tried to pass, asked Smith if that was correct? Smith answered:

“As to whether it abruptly swerved to the left or not I could not say: but I do know that when Mr. Hanagriff applied his brakes there was not so much clearance for him to get by.”

Here it will again be noted that he does not contradict the statement made by Hanagriff that Gunn turned to his left. The following part of Smith’s foregoing reproduced statement must be observed where he says that when Hanagriff applied his brakes, “there was not so much Clearance for him to get by.” The proof above referred to from both Hanagriff and Gunn shows that both had “plenty of room” on . either side of the roadway to operate their respective cars. As Smith says that when Hanagriff applied his brakes he did not have so much “clearance to get by,” it is logical to conclude that Gunn had turned his car to the left side and was obstructing his passage. Smith could not say that he had turned abruptly, but his testimony is corroborative of Hanagriff’s statement to the effect, at least, that Gunn had swerved to his left.

Miss Sparks, plaintiff, says she had not particularly noticed the Gunn car, and could not say if it had swerved ahead of the Hanagriff car prior to the impact.

Miss Pitts, the other occupant of the Hanagriff car, did not testify in the case.

Mr. Smith testified that Mr. Hanagriff sounded his horn several times, but could not say if he had for the Gunn car, and said:

“I rather think he did.”

Miss Sparks testified that she could not say if Mr. Hanagriff had blown his horn for the Gunn car.

Mr. Hanagriff says that he blew his horn twice on approaching the Gunn car, Mr. Smith says he blew it several times before in passing other cars, and Miss Sparks says she could not say if he had or not, and Mr. Gunn says he did not hear it.

The preponderance of the evidence is therefore, in favor of Mr. Hanagriff on this question, and it must therefore be held that he sounded the horn. If the lower court so believed — and there is nothing to indicate it did not, certainly not from the judgment rendered — on such an issue of fact, it is not for us to say that there was an error in its finding.

The vital issue in the case is as to whether Gunn suddenly turned his car to the .left and compelled Hanagriff to apply his brakes, and, in attempting to straighten his car, ran it into the loose gravel, thus causing the accident.

Hanagriff is very positive that Gunn acted in the manner stated, which he says by his fault was the proximate cause of the accident.

Smith, though he could not state that Gunn abruptly turned his car to the left, said, as we have before remarked, that he had not left much clearance on the left side of the roadway for the passage of Hanagriff’s car.

The answers on these vital questions were reluctantly given by Gunn and are of such a character that the lower court must have accepted the version of the occurrence as related by Hanagriff, and indirectly supported by the testimony of Smith. The court, we must assume, found that the barring of the passage of Hanagriff’s car by Gunn was the proximate cause of the accident.

Under the provisions of Act 296, 1928, p. 628, Hanagriff had the right to travel on the Port Allen highway at the rate of 45 miles an hour, particularly during the daytime. The fact is that Gunn was, according to his own statement, traveling at about that rate of speed. The proof is that Hanagriff had passed other cars before he reached Gunn’s car.

Mr. Hogue, one of plaintiff’s witnesses, says Hanagriff passed ahead of him like a flash, but this answer had been adroitly suggested to him by counsel’s question.

Miss Graham, another witness for plaintiff, says defendant blew his horn, that she pulled over to her right, and that he was going about 40 or 45 miles an hour.

It is shown that Hanagriff had been admonished by one of the occupants of his car that he was going too fast, that he had heeded the advice, had slowed down, and thereafter resumed his speed.

Miss Sparks estimated his speed at the time of the accident at 55 miles an hour.

The proof is that he had caught up with the Gunn car when, in trying to straighten his car, it rolled over in the ditch, as hereinabove explained. It is therefore fair to conclude that he had speeded up his car to about 50 miles an hour, as he had caught up with the Gunn car, which was going between 40 and 45 miles.

He was therefore traveling at a speed exceeding by about 5 miles the limit fixed by our statute on the subject.

Berry on Automobiles (6th Ed.) vol. 1, sec. 230, p. 202, says:

“That although an automobile may be traveling at a rate of speed prohibited by law, unless the excessive speed of the car was the proximate cause of an injury complained of the owner is not liable for such negligence.”

In section 227, same volume, this author says that the mere proof that defendant was violating the law “raises, no presumption that his' negligence proximately caused the injury.”

In Hudson v. Jackson Brewing Company, 4 La. App. 549, the court held that a speed exceeding the maximum permitted by a city ordinance is not “negligence per se, and when it appears that the excessive speed was not the cause of the accident no liability in damages arises therefrom.”

This, principle was recognized in Collier v. Frank Varino & Co., 153 La. 636, 96 So. 500; Smith v. Interurban Transp. Co., 5 La. App. 704.

Driving at a rate of speed exceeding the statutory limit, as we understand the law, is not in itself determinative of responsibility. The fault or negligence which is the proximate cause of the accident or injury is the criterion of liability in such cases.

In arriving at this conclusion, we have not lost sight of section 5 of Act 296 of 1928, where it says that a driver of a vehicle on the highway, in regulating his speed, must have due regard to the traffic, surface, and width of the highway.

Here it is shown by both Hanagriff and Gunn that they had ample room on each side of the highway for the safe passage of their cars, with due consideration of the fact that there was about 3 feet of loose gravel on the side of the roadway. In connection therewith we may state that there is no proof that the traffic on the highway at that time nor the condition of the surface of the road could have caused the apprehension of any danger which could have arisen from such' factors. The fact is that defendant, before getting to the Gunn car, had successfully passed other cars, and without apparent danger or trouble as far as the record discloses.

The clear-cut issue is ■ as to whether defendant’s way was blocked by the turn to the left of the Gunn car. There is no suggestion or intimation in the pleadings of any concurrent negligence on the part of defendant and no proof to that effect. The preponderance of the evidence shows, as hereinabove stated, that Gunn was at fault when, by veering to his left, he barred defendant’s right of way, and that his negligence was the sole proximate cause of the accident.

The solution of this issue depended altogether on questions of fact in which the credibility of some of the witnesses played an important part. On such issues the appellate courts will not interfere except in cases when the lower court has fallen into a manifest error which we fail to find in this case. On the contrary, we find that the preponderance of the evidence supports the judgment dismissing plaintiff’s suit, and it is therefore affirmed, with cost.