Zambo v. National Union Insurance Co. of Pittsburgh, Pennsylvania

196 So. 2d 330, 1967 La. App. LEXIS 5589
CourtLouisiana Court of Appeal
DecidedMarch 6, 1967
DocketNo. 2505
StatusPublished
Cited by1 cases

This text of 196 So. 2d 330 (Zambo v. National Union Insurance Co. of Pittsburgh, Pennsylvania) 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
Zambo v. National Union Insurance Co. of Pittsburgh, Pennsylvania, 196 So. 2d 330, 1967 La. App. LEXIS 5589 (La. Ct. App. 1967).

Opinion

CHASEZ, Judge.

The plaintiffs, Joseph H. Zambo and Mrs. Dorothy Dupont Zambo, individually' and as natural tutrix of the minor, Carol Ann Hagelberger, sued the defendant, the National Union Insurance Co. of Pittsburgh, Pa. for damages arising out of a collision between a motorcycle being driven by Joseph H. Zambo upon which his minor stepdaughter, Carol Ann Hagelberger, was. d riding as a passenger, and an automobile being operated by Rudolph A. Stratman, the defendant’s insured. The plaintiff’s petition alleged the negligence of Mr. Strat-man.

The defendant in its answer contended that the proximate cause of the accident was Mr. Zambo’s negligence or, alternatively, that he was contributorily negligent. It also filed a third-party petition against Joseph H. Zambo praying for indemnity or contribution for any sums for which it might be held liable to Mrs. Dorothy Du-pont Zambo, individually and as tutrix of Carol Ann Hagelberger.

The collision occurred on the westbound side of Jefferson Highway (U.S. 90) in Jefferson Parish on January 3, 1964. Whether the impact took place in the left-hand or right-hand lane is disputed by the parties. The highway is a four-lane highway, with a neutral ground separating the [332]*332eastbound from the westbound lanes. Mr. Zambo was executing, or had just executed, a U-turn around a break in the neutral ground in order to head back in a westerly direction, and Mr. Stratman was making a right turn, from Cliff Street, which intersects the highway opposite the neutral ground break, to proceed in a westerly direction, when the impact occurred, involving the right side of the motorcycle and the left front of the automobile bumper.

Both parties were travelling at a slow rate of speed at the time. The motorcycle was turned over, injuring Mr. Zambo and Carol Ann Hagelberger.

The trial judge found “that the collision occurred in the left lane of the roadway. For this reason it concludes that Mr. Strat-man made too wide a turn on entering the highway and struck the motorcycle turning into that lane. Under these circumstance (s) he should have kept his automobile in the right lane of the roadway. This was the proximate cause of the collision.” Accordingly he awarded $7,500.00 for Mr. Zambo’s injuries, plus $1,632.16 in special damages. For Carol Ann’s injuries he awarded $1,500.00, and special damages to her mother, as natural tutrix, in the amount of $345.23.

The defendant has appealed from the judgment below, reiterating the argument that Joseph FI. Zambo was negligent so as to bar his recovery, and asserting that Carol Ann Hagelberger was also guilty of negligence such as to bar her recovery. Further it is argued that the award to Joseph H. Zambo was in itself excessive. The plaintiffs answered the appeal, praying for an increase in the awards for Joseph H. Zam-bo’s and Carol Ann Hagelberger’s injuries.

The defendant asks that we reverse the trial court’s fact finding that it was the negligence of Rudolph Stratman that caused the accident. The defendant maintains that the accident occurred in the right-hand lane. He also argues that Zambo was negligent in making a left-hand turn from the left side of the break in the neutral ground, and was negligent in not paying attention to the oncoming vehicle, instead of looking in an easterly direction as he was making his turn. Further, there is a dispute as to whether Stratman had stopped prior to the collision or whether he ran into Zambo’s motorcycle.

Rudolph Stratman testified that he stopped at the intersection of Cliff St. and Jefferson Highway, started across, and stopped in an angled position with the car protruding in the left-hand lane after seeing Zambo making a turn on the opposite side of the neutral ground, his original intent having been to proceed westerly in the left-hand lane after completing his turn. He stated that Mr. Zambo and his passenger were looking down the highway and the girl was pointing down the highway when making the turn. In his deposition and during the trial Mr. Stratman stated that he told the police he was stopped before the impact occurred.

Mr. Thomas Mizell, an acquaintance of Mr. Stratman who witnessed the accident, was called on behalf of the defendant. He stated that Stratman had stopped at the intersection of Cliff Street and Jefferson Highway and waved at him at his place of work on this corner before proceeding onto the highway, but stopped again “right quick” before he got onto the highway, when the motorcycle bumped into the car very soon after Stratman stopped, the man on the motorcycle having moved about two steps on his foot. This testimony conflicts with the weight of the evidence in the record, Mr. Stratman’s testimony included. Mr. Mizell also testified that the front wheel had cleared the automobile at the time of impact and that the girl was pointing toward New Orleans when the turn was being executed by the motorcycle.

Mr. Zambo testified that he entered the break in the intersection and stopped until traffic cleared. He said he saw an automobile approaching the highway on Cliff St., which he stated appeared to intersect [333]*333the highway a little below the neutral ground break, and gave it no more than a “passing glance”. He executed a left turn into the left-hand lane when he was struck from behind. He said that he “walked” his motorcycle in executing the turn, that is, using one foot on the ground to help control it at a slow rate of speed. Mr. Zambo stated that Mr. Stratman said to him, “I’m sorry, I’m sorry. I didn’t see you. I was not looking.” immediately after the collision. His evidence was that the motorcycle was struck on the right rear between the saddle-bag and the rear-guard bumper. A rough sketch of the intersection with the location of the impact placed in the left-hand lane was also offered in connection with his testimony.

Carol Ann Hagelberger’s testimony was substantially the same as Mr. Zambo’s. She also stated that the Stratman vehicle did not stop on the highway before it struck the motorcycle. She stated that she had her hand out in response to the question, “Do you recall him (Zambo) indicating in any way that he was intending to make a left hand turn?”

Douglas Michel, the state trooper who investigated the accident also testified. He stated that the car had been backed off the road when he arrived, and that he located what he thought to be the position of the impact in the right-hand lane from the very light debris which was found in that lane. When asked if Mr. Stratman had made any statement to him about the accident, he replied :

A. “Yes. He told me that he was coming on to U.S. 90 in order to make a right turn going West, and that he did not see anything and he just — I believe he stated that the motorcycle came in front of him and he struck it.
Q. Let me see if I understand you. He said he had not seen the motorcycle before the impact ? Is that correct ?
A. No, sir. To the best of my recollection he said he was making a right turn onto Jefferson Highway, and when he was making the right turn the motorcycle came in front of him.
Q. But he did tell you that he had not seen the motorcycle until just before the accident?
A. Yes, to the best of my knowledge.
Q. Did he give you an estimate of his speed at the time of the impact?
A. Yes, sir. I have here (referring to report), Five (S) miles an hour.

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Bluebook (online)
196 So. 2d 330, 1967 La. App. LEXIS 5589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zambo-v-national-union-insurance-co-of-pittsburgh-pennsylvania-lactapp-1967.