Vittetoe v. Traders & General Insurance

255 So. 2d 831, 1971 La. App. LEXIS 5505
CourtLouisiana Court of Appeal
DecidedNovember 16, 1971
DocketNo. 11697
StatusPublished
Cited by3 cases

This text of 255 So. 2d 831 (Vittetoe v. Traders & General Insurance) 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
Vittetoe v. Traders & General Insurance, 255 So. 2d 831, 1971 La. App. LEXIS 5505 (La. Ct. App. 1971).

Opinion

HEARD, Judge.

This is an action for damages by Elmer Vittetoe, Jr., against Mrs. Jackie J. Matt-son, Traders & General Insurance Company, Baptist Christian Academy, Ada C. Caraway and Allstate Insurance Company. The suit arose out of an intersectional collision between a school bus driven by Mrs. Mattson for the Baptist Christian Academy and an automobile driven by Ada C. Caraway. Traders & General was the liability insurer of the school bus and Allstate Insurance Company was the liability insurer of Mrs. Caraway’s car. Elmer Vittetoe, Jr.’s son, Trey Vittetoe, was a passenger in the school bus and injured ^ a result of the collision.

Elmer Vittetoe, Jr. sued the above defendants individually to recover medical expenses, and as administrator of his son’s estate to recover damages for pain and suffering, disability and disfigurement.

Trey received a severe laceration beginning above his left eye and extending approximately to the crown of his head. This wound left a scar, a depression of the skull beneath the scar, and a condition known as ptosis which is the inability of the muscles to completely raise the eyelid. Trey recovered from the injury in a physical sense, except for the ptosis, and his remaining permanent injuries are strictly cosmetic.

The collision occurred about 3:30 p. m. on October 28, 1969, at the intersection of Edwin and McWillie Streets in the City of Shreveport. A city ordinance designates Edwin a stop street at McWillie, and stop signs were erected accordingly at the southwest and northeast corners of Edwin and McWillie. McWillie is a north/south [833]*833roadway and Edwin is an east/west roadway. Approximately three or four days prior to this accident, the stop sign at the southwest corner of Edwin and McWillie was removed, pole and all, by persons unknown.

Mrs. Mattson was driving the school bus in an easterly direction on Edwin and Mrs. Caraway was proceeding southerly on McWillie. Neither driver applied her brakes at the intersection, and, although both drivers testified they looked both ways before entering the intersection, neither saw the other until the collision was imminent. The bus, a 1967 Chevrolet panel truck, struck the car, a 1967 Pontiac, broadside in the southwest quadrant of the intersection. Neither driver’s speed was excessive at the time of or prior to the collision. Trey was thrown from the bus and injured.

The subsequent suit was tried before a jury which found for plaintiff against Mrs. Mattson, the Baptist Christian Academy and Traders & General Insurance Company. The jury awarded damages to Elmer Vittetoe, Jr., individually, in the amount of $500, and as administrator of his son’s estate in the amount of $13,500. Judgment against these defendants, in solido, was rendered accordingly and Mrs. Mattson, the Baptist Christian Academy and Traders & General Insurance Company, as well as Elmer Vittetoe, Jr. appealed.

It should be noted that Mrs. Mattson, Baptist Christian Academy and Traders & General Insurance Company are not asserting that Mrs. Mattson was free from negligence, but rather that Mrs. Caraway should be found to be a joint tortfeasor, and therefore also liable in solido to plaintiff. They further assert that the quantum of damages awarded is excessive. Elmer Vittetoe, Jr., also asserts that Mrs. Caraway was a joint tort-feasor, however, contending the quantum awarded is correct.

McWillie is normally the preferred street at this intersection. However, on the date of the collision the stop sign facing Mrs. Mattson was not in place. Our jurisprudence is such that:

“ * * * where the boulevard, through street or arterial highway has been properly designated and appropriate signs have been erected, it ordinarily has been held that the preferred status of the highway is not lost merely because a stop sign is misplaced, improperly removed, destroyed, or obliterated.” [74 A.L.R. 2d 245]

See also Fontenot v. Hudak, La.App., 153 So.2d 120 (3d Cir. 1963); Kinchen v. Hansbrough, La.App., 231 So.2d 700 (1st Cir. 1970) and Ory v. Travelers Insurance Company, La.App., 235 So.2d 212 (4th Cir. 1970) quoting with approval the above text. It seems clear that under the jurisprudence of this state, McWillie was the preferred street at this intersection. This is significant because it is settled that the driver proceeding on a preferred street has the right to assume that others will obey the law and stop. Ory v. Travelers Insurance Company, supra; Kinchen v. Hansbrough, supra; Fontenot v. Hudak, supra. In Youngblood v. Robison, 239 La. 338, 118 So.2d 431 (1960) our Supreme Court said:

“ * * * when an intersection is controlled by a stop sign, the motorist on the favored street * * * is entitled to indulge in the assumption that any driver approaching from the less favored street will bring his car to a complete stop before entering the intersection.” [118 So.2d 431, 434]

As in the case with most rights accorded to persons under our law, the preferred driver’s right to assume that others will obey the law and stop is not unlimited. Thus in Rome v. D’Antoni, Inc., La.App., 246 So.2d 331 (1st Cir. 1971) writ refused, 258 La. 767, 247 So.2d 864 (1971) it was said that:

“ * * * where the motorist on the favored street could have avoided the accident by the exercise of the slightest degree of observation and care, he will be deemed guilty of negligence consti[834]*834tuting a proximate cause of the accident.” [246 So.2d 331, 334]

We interpret the above statements of our jurisprudence to mean that a driver on a preferred street may 'engage in the assumption that drivers on servient streets will yield the right of way, and he may continue to engage in this assumption until he sees or should see a situation that indicates it is no longer reasonable to assume the right of way will be yielded. Here Mrs. Caraway was traveling on what she knew to be a preferred street while proceeding at a speed of approximately 25 miles per hour. She testified she looked both ways before entering the intersection and saw nothing. Assuming, but not deciding, that Mrs. Caraway should have seen the bus approaching the intersection, the record reflects that she could have observed the vehicle approaching a stop street at a speed of 15 to 20 miles per hour. This is not an excessive rate of speed and is, in fact, quite slow. We find the record devoid of evidence showing that what Mrs. Caraway should have seen would have indicated that it was no longer reasonable to assume her right of way would be respected.

As to quantum of damages in this case Mrs. Mattson, Baptist Christian Academy and Traders & General Insurance Company, suggest that the award of $13,500 plus medical expenses was excessive and should be reduced to $5,000 plus medical expenses. They give as their reason that the jury allowed sympathy to enter into its decision. Whether this is true or not will never be known, but these defendants have cited no cases with similar facts showing an abuse of discretion on the part of the jury. LSA-C.C. Art. 1934(3) states:

H< * * * ‡ *
“In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, * *

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Related

Mixon v. Allstate Insurance
269 So. 2d 576 (Louisiana Court of Appeal, 1972)
Dillman v. Allstate Insurance Company
265 So. 2d 322 (Louisiana Court of Appeal, 1972)
Vittetoe v. Traders & General Insurance
257 So. 2d 156 (Supreme Court of Louisiana, 1972)

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Bluebook (online)
255 So. 2d 831, 1971 La. App. LEXIS 5505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vittetoe-v-traders-general-insurance-lactapp-1971.