Whatley v. Scogin

143 So. 2d 833, 1962 La. App. LEXIS 2199
CourtLouisiana Court of Appeal
DecidedJuly 5, 1962
DocketNo. 578
StatusPublished
Cited by4 cases

This text of 143 So. 2d 833 (Whatley v. Scogin) 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
Whatley v. Scogin, 143 So. 2d 833, 1962 La. App. LEXIS 2199 (La. Ct. App. 1962).

Opinions

TATE, Judge.

The plaintiff Whatley brings suit to recover for personal injuries resulting from a motor vehicle collision on July 31, 1959. At the time of the accident, plaintiff was driving a gravel truck for his employer. Made defendants are (a) Scogin, the driver of the other vehicle involved, (b) Scogin’s employer, and (c) the liability insurer of the Ford passenger automobile being driven by Scogin at the time of the accident. The plaintiff’s employer intervened to recover for workmen’s compensation benefits paid to their employee, the plaintiff Whatley, as a result of the accident.

The trial court awarded the plaintiff $28,334.41 and further recognized the in-tervenor’s subrogation claim. The defendants appeal from such judgment. The plaintiff answers the appeal, seeking an increase in the award.

I. Liability.

The accident occurred at a hilly curve on a gravel country road. It took place [835]*835at ten o’clock in the morning. There were no unusual weather conditions at the time.

Although contradictory versions of the accident were given by the plaintiff Whatley and the defendant Scogin, each supported by some corroborating witnesses, we find that the trial court correctly felt that the preponderance of the evidence supported the version of the accident given by the plaintiff Whatley.

Under this version, which to some degree is corroborated by the physical facts of the accident and by admissions from the witnesses testifying for the defendants, the plaintiff, at a speed of 5-10 mph, had just proceeded some thirty feet past the crest of a hilly curve, when the defendant, approaching from the opposite direction at a speed of 40-50 mph, lost control of his automobile and skidded into the side of the plaintiff’s truck. The truck was well on its own side of the road, at a place where the roadway was approximately, thirty feet wide. The preponderance of the evidence shows that the plaintiff had never left his own side of the roadway.

As we recently re-stated in Breaux v. Valin, La.App. 3 Cir., 138 So.2d 405, 406: “Under such circumstances, a driver who on his wrong side of the road collides with another car which is in its correct lane of traffic is required to exculpate himself of any fault, however slight, contributing to the accident. [Citations omitted.]”

In holding the defendant Scogin’s negligence to be the sole proximate cause of the accident, we think that the trial court correctly held that “ * * * plaintiff while driving a loaded gravel truck and just after attaining the top of a hill and onto a straight stretch of road, was struck by an automobile driven by Arlis D. Scogin. It appears that Scogin did not see the truck timely and applied his brakes and skidded into the path of the truck thus causing the collision and the resulting injuries to plaintiff.”

Eminent counsel for the defendants-appellants, in an ingenious and lengthy brief, seeks to convince this court that the facts of the accident should be construed so as to hold that it occurred when the plaintiff made a left turn across the defendant Scogin’s front, arguing that at the place of the accident the plaintiff Whatley had entered in intersection in Scogin’s path.

This argument is based upon the circumstance that at the crest of the hill another gravel road ran into the curve of the main gravel road upon which both the plaintiff Whatley and the defendant Scogin were approaching with the intention of passing one another and continuing on, each in the direction from which the other came.

Despite counsel’s able argument, we are unable to hold that this circumstance alters the duties of the drivers to keep on their own side of the road on which they were travelling and to avoid encroaching on the other lane and colliding with approaching traffic properly therein. To reiterate, the facts preponderantly show that one driver approaching a curve at a speed too excessive to maintain control and to stay on his own side of the roadway, skidded over, upon applying his brakes, and struck the slow-moving other vehicle, which had always remained in its own lane of traffic on the curve in the roadway in question.

Counsel also argues that the plaintiff Whatley was contributorily negligent in having failed to sound his horn, relying on LSA-R.S. 32:242 which pertinently provides : “The driver of a motor vehicle traversing hilly highways shall hold it under control and as near the right hand side of the highway as reasonably possible, and upon approaching any curve where the view is obstructed within a distance of two hundred feet along the highway, shall give audible warning with a horn or other warning device. * * * ” (Italics ours.)

Plaintiff produced substantial evidence that the defendant Scogin should have ob[836]*836served the presence of Whatley’s truck climbing the incline when Scogin was at a distance of 250-500 feet distant from him. It is further to be remembered that Whatley was approaching at a speed of 5-10 mph, while Scogin was coming from the opposite direction at a speed of 45-50 mph. Even though Whatley may have failed to sound his horn as he entered the curve, such failure is not proven to be a proximate cause of the accident, considering that he had already negotiated the curve at the time of the accident and that Scogin should reasonably have observed the approaching truck in the other lane of the road in time to have avoided the accident, had he been exercising proper lookout. See Elmore v. Jackson Transfer & Storage Co., La.App. 1 Cir., 36 So.2d 408, syllabus 2. The sole proximate cause of the accident was Scogin’s losing control of his own automobile and striking the truck in the latter’s lane.

II. Quantum.

The trial court awarded the plaintiff a total of $28,334.41. The award included: Special damages of $3,104.41 for medical expenses and travel expenses connected therewith, and of $10,230 for loss of earnings; and general damages of $15,000.00 for pain and suffering and loss of future earnings.

Without contradiction, the evidence reflects the'following:

Immediately following the accident, the plaintiff noticed only some slight bruises and some hip, leg, and knee pain. On the next day he reported to his family physician, suffering with severe back pain and pain in his left hip and down his left leg. The condition was at first diagnosed as back sprain, but, since it continued in severity, on September 11, 1959 (about six weeks after the accident) the plaintiff was referred to an orthopedist, who diagnosed the cause of the plaintiff’s complaints and undoubted disability as a ruptured inter-vertebral disc.

An operation was performed on January 16, 1960 in which two discs were removed. The plaintiff still continued to suffer a substantial amount of pain and disability, but, on November 20, 1960, acting upon the advice of the attending orthopedist, the plaintiff attempted to resume work. As a result of a single day’s work, he suffered so greatly that he was incapacitated from further attempts at work.

The plaintiff was then re-examined by the attending orthopedist. Various studies made of the plaintiff’s condition by this doctor and another orthopedist revealed that massive scar tissue had formed as a result of the first operation and was causing substantial nerve root pressure, thus causing severe pain similar in nature to that caused by a ruptured disc.

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

Related

Franklin v. Insurance Company of North America
284 So. 2d 158 (Louisiana Court of Appeal, 1973)
Cole v. Lumbermens Mutual Casualty Company
160 So. 2d 785 (Louisiana Court of Appeal, 1964)
Johnston v. Peerless Insurance
159 So. 2d 415 (Louisiana Court of Appeal, 1963)
Matthews v. F. Miller & Sons, Inc.
146 So. 2d 522 (Louisiana Court of Appeal, 1962)

Cite This Page — Counsel Stack

Bluebook (online)
143 So. 2d 833, 1962 La. App. LEXIS 2199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whatley-v-scogin-lactapp-1962.