
    Mrs. Loida B. BENOIT, Plaintiff, Appellant, v. Erroll J. CAMELLE, Defendant, Appellee.
    No. 4577.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1974.
    On Rehearing Sept. 11, 1974.
    Rehearing Denied Oct. 10, 1974.
    Writ Refused Dec. 13, 1974.
    
      John R. Mouton and J. Minos Simon, Lafayette, for plaintiff-appellant.
    Davidson, Meaux, Onebane & Donohoe, by J. J. Davidson, III, and L. Lane Roy, Lafayette, for defendant-appellee.
    Before HOOD, CULPEPPER, and MILLER, JJ.
   MILLER, Judge.

Plaintiff Mrs. Loida B. Benoit appeals from a jury verdict denying her claim for personal injuries allegedly caused by the negligence of defendant Erroll J. Camelle. We affirm.

The automobile accident occurred on April 2, 1971, at approximately 5:30 p. m. on the Gloria Switch Road in Lafayette Parish. Traffic was light, climatic conditions were good, and the road in this area is straight. The road is a two lane hard-surfaced road.

Camelle’s mailbox is on the north side of the road about 2% feet from the blacktop and his house is on the south side of the road. Camelle had been going east, but pulled to the left side to pick up his mail and newspaper. Both left wheels of his vehicle were about two feet off the blacktop and the remainder of his car was positioned squarely on the pavement blocking the north portion of Mrs. Benoit’s westbound lane of travel.

Both motorists testified that they first saw the other at a distance of approximately 1200 to 1500 feet. Mrs. Benoit was travelling between 35 and 45 mph, but raised her foot from the accelerator before reaching Camelle’s stopped vehicle. Ca-melle verifies her approximate speed, and both testified that no skidmarks were laid down. Camelle and Mrs. Benoit both testified that she remained in her proper lane until immediately prior to the accident. No other traffic was seen approaching the scene of the accident from either direction.

The pictures of Mrs. Benoit’s vehicle show no damage to the front or to the right front fender. Other than minor scratches, her vehicle was damaged at the two right doors. Comelle’s vehicle was damaged at the front right corner. Both vehicles were drivable after the accident.

The factual dispute lies in how the accident occurred. Camelle suggests that he was in a stationary position at the time of the accident, and that Mrs. Benoit failed to turn to avoid his vehicle until too late. Mrs. Benoit suggests that Camelle attempted to cross over to the south side of the road to enter his driveway while she was immediately alongside him.

In support of the proposition that he remained stationary, Camelle offers only his testimony. Mrs. Benoit offers her testimony as well as other evidence to establish Camelle’s movement prior to the accident.

Mrs Benoit strongly urges that photographs in evidence constitute proof that the accident happened in accordance with her version. She emphasizes that lack of damage to the front of her vehicle and to her right front fender indicates that she could not possibly have struck Camelle while he was stationary unless she were skidding or sliding. She and Camelle both testified that she did not skid or slide into the collision. This contention was ably argued by her counsel to the trial jury.

Mrs. Benoit also points to alleged statements made by Camelle after the accident which indicate that he moved his car into the side of her car. She testified that Ca-melle told her he had to hurry to get across the road so that his young grandchild and other children, who were playing in the driveway, would not run across the road.

The investigating officer Clayton J. Babineaux was not allowed to testify before the jury because he had violated the sequestration of witnesses rule. The trial judge properly ruled that it was plaintiff’s responsibility to keep Babineaux out of the courtroom while he was sequestered. Ba-bineaux heard the arguments and the trial judge’s comments concerning the relevance of his testimony on certain aspects of the case. There is no error in this ruling. We have nevertheless reviewed his testimony which is before us on proffer of proof. Babineaux testified that Camelle admitted fault and stated that he drove across the road prematurely to keep the children in the driveway from crossing the road.

The jury found both parties guilty of negligence which proximately caused the accident. The verdict on Camelle’s negligence is unquestioned on appeal. The issue here concerns Mrs. Benoit’s contributory negligence. We find no manifest error by the jury in finding her contributorily negligent.

Both Mrs. Benoit and Camelle corroborate her actions immediately prior to the accident. She testified that she was in her lane of travel when she was struck (Tr. 202). The officer’s sketch verifies this fact. Camelle testified at Tr. 510 that she remained in her lane until only two car lengths before reaching his vehicle. The testimony is uncontradicted that Mrs. Be-noit did not leave her lane until immediately prior to impact.

Both parties testified that no traffic was headed into Mrs. Benoit’s direction. She admitted seeing the stationary obstacle in her lane when she was more than 1000 feet away. The jury could have reasonably concluded that the accident would have been avoided by Mrs. Benoit’s approaching the obstruction in the highway in a more cautious manner; that her determination to remain in her own lane until the last possible instant, when nothing hindered safe entry into the passing lane, was negligence which proximately caused the accident. It is reasonable to conclude from all the evidence that the accident would not have occurred had Mrs. Benoit moved to the passing lane when she was 300 feet from Camelle’s vehicle.

Under Mrs. Benoit’s own uncontradicted testimony she was contr'ibutorily negligent for failure to exercise due care for her own safety. No showing of manifest error has been made, and the jury verdict is affirmed. Hooper v. Wilkinson, 252 So.2d 137 (La.App. 3 Cir. 1971).

The trial court judgment is affirmed at appellant’s costs.

Affirmed.

ON REHEARING GRANTED

HOOD, Judge.

We granted a rehearing to reconsider our original conclusion that Mrs. Be-noit had failed to exercise proper care, and that she thus is barred from recovery because of her own contributory negligence. After reviewing the evidence, we have decided that we erred in arriving at that conclusion.

Mrs. Benoit was driving west at a speed of 35 to 45 miles per hour when she first observed the Camelle car ahead of her, parked on the north side of the highway, facing east, partially in her lane of traffic. She reduced her speed when she was from two to four city blocks from Camelle, and she then turned her car slightly to her left to go around the parked vehicle. She testified, however, that when her automobile was “alongside of his car,” Camelle suddenly caused his car to move forward and south, as though attempting to cross the road, and the front part of his car struck the right side of her automobile. She stated that her car was “right by his when he pulled out across the road,” and that the force of the impact knocked her car into a ditch on the south side of the highway.

Mrs. Benoit also testified that immediately after the accident occurred Camelle explained to her that he had suddenly started to cross from the north to the south side of the highway immediately before the cars collided, because “his little grandchild was about to cross the road, so he had to hurry and cross so his little grandchild wouldn’t cross.

Defendant Camelle denies that he moved his vehicle at all immediately prior to or at the time of the accident. He testified that his car remained stationary up to the moment of the collision, and that the right front part of his car was struck by the middle of the right side of the Benoit vehicle. He stated that no skid marks were left on the highway by either vehicle, that the Benoit car did not skid or “bend or slide” on the highway, and that it was not approaching his automobile “sideways” when the vehicles collided. He stated that after the impact the Benoit vehicle traveled a distance of about 35 feet, and came to rest in the ditch on the south side of the highway.

Camelle concedes that immediately before the collision occurred he saw his five-year-old grandchild, and two other children of about the same age, playing on the south shoulder of the highway, directly across the road from the place where he had parked. He stated that his grandchild usually ran to his car to meet him when he drove into the driveway leading to his home on the south side of the road, but he explained that that occurred only when he drove into his carport, and that the child had never run across the highway to meet him. He admitted, however, that he told the investigating officer immediately after the accident occurred that “You know, after all this happened, we are fortunate them children didn’t come into the path of her car.”

The evidence, including four photographs of the Benoit car taken shortly after the accident, establishes that plaintiff’s car was struck violently on its right side, almost in the center of the car, at about the point where the door post between the front and rear doors on the right side of the car is located. The front of the Benoit car, including the entire right front fender, had not been struck and was not damaged.

In our original opinion we felt that Mrs. Benoit had been negligent in attempting to pass too close to the Camelle vehicle, and that her negligence in that respect had caused the side of her car to strike the front of Camelle’s vehicle. Upon reconsidering the evidence, we have concluded that the accident could not have occurred in that manner. Since Mrs. Be-noit’s car did not skid or slide “sideways” at any time before the collision, we believe it would have been impossible for the right side of her automobile to have struck the right front part of the Camelle car, if the latter actually had remained stationary up to the time of the collision. The damage sustained by the Benoit car convinces us that the Camelle vehicle was moving in a southerly direction at the time of the collision, as stated by Mrs. Benoit.

The fact that the impact caused Mrs. Benoit’s car to change its course and come to rest in the ditch on the south side of the highway also tends to corroborate plaintiff’s version of how the accident occurred. It seems logical to us that her car would have come to rest in that position if it had been struck on its right side, or north side, by the Camelle car while the latter was traveling south. We are unable to rationalize, however, how the west-bound Benoit car could have wound up in that position if it had collided with a stationary car on the north side of the road.

We also think Camelle’s admission that he told the investigating officer that it was fortunate that the children had not run into the path of the Benoit vehicle, tends to support plaintiff’s statement that Ca-melle had told her, in substance, that he started to drive across the highway into his own driveway to avoid the danger that his grandchild might run into the path of plaintiff’s vehicle if Camelle had remained parked across the road.

Our conclusion, after reconsidering all of the evidence, is that Mrs. Benoit was free from negligence, and that the sole proximate cause of the accident was defendant Camelle’s negligence in suddenly starting his car and causing it to run into the side of plaintiff’s vehicle. We think plaintiff is entitled to recover the damages which she sustained, and that the trial judge erred in rejecting her demands.

Mrs. Benoit was 53 years of age when the accident occurred. She had sustained a back injury in 1963,' which was diagnosed as a herniated intervertebral disc at the lumbosacral level. No corrective surgery was performed, but her condition apparently became asymptomatic thereafter) since she worked fairly regularly for several years after 1963.

As a result of the accident which occurred on April 2, 1971, Mrs. Benoit sustained injuries consisting of a hematoma of the left forearm, a muscle strain of the left rectus muscle, and muscle strains of the left lumbar area. The evidence indicates also that as a result of the accident a pre-existing degenerative arthritic condition of her spine was aggravated.

The medical treatment which plaintiff received following this accident included hospitalization for three days in April, 1971, and for two days in June of that year. She wore a lumbosacral support for several months after it was prescribed for her on April 27, 1971, and she was still taking medication, primarily for the relief of pain, at the time of the trial which took place about two years after the accident.

She remained under the care of her initial treating physician from the date of the accident until September 17, 1971, or a period of a little more than five months. The same physician treated her on two occasions after that date for conditions unrelated to the accident. She was treated by an orthopaedic surgeon for a period of about six months from and after September 23, 1971. Her treatment, other than hospitalization, has consisted of some ultrasound treatments and medication, the latter being primarily pain relievers and muscle relaxants.

The hematoma on plaintiff’s arm cleared up and disappeared very shortly after the accident occurred, and the evidence convinces us that within a period of five or six months after the accident she recovered from the muscle strains which she had sustained. She still complained of pain or discomfort at the time of the trial, which took place about two years after the accident, but the evidence does not convince us that her present symptoms are causally related to the accident which occurred on April 2, 1971.

In our opinion an award of $5,0.00.00 for all of the injuries which plaintiff sustained, including her pain and suffering, would be fair and adequate. Plaintiff has alleged no loss of wages or other special damages, and the evidence does not indicate that she has sustained any such loss.

For the reasons herein set out, we set aside the judgment which we rendered originally in this case. The judgment appealed from is hereby reversed, and judgment is hereby rendered in favor of plaintiff, Mrs. Loida R. Benoit, and against defendants, Erroll J. Camelle and Southern Pacific Transportation Company, in solido, for the sum of $5,000.00, with legal interest thereon from date of judicial demand until paid, and for all costs of this suit. The costs of this appeal are assessed to said defendants.

Reversed and rendered.

MILLER, J., dissents and assigns written reasons.

MILLER, Judge

(dissenting).

I respectfully submit that the majority on rehearing has substituted its conclusions for those of the trial jury.

We are not here concerned with whether or not Camelle was negligent. The jury expressly so held and as noted in our original opinion, that determination was not questioned.

Our review is limited to the issue of whether or not the jury could have reasonably concluded that Mrs. Benoit was negligent, and, if so, was her negligence a legal cause of the accident.

I do not fault the finding that Camelle moved forward and struck the side of Mrs. Benoit’s car. As noted before the jury found Camelle negligent. I respectfully submit that the jury had a sound basis for concluding that his forward movement would not have caused the accident except for Mrs. Benoit’s negligence in staying in her lane and passing too close to Camelle’s vehicle.

The majority on rehearing has not faulted our original finding that Mrs. Benoit was in her lane of travel when she was struck (Tr. 202), and that this was verified by the investigating officer who testified as her witness. There is no suggestion that the jury erred in accepting Camelle’s testimony (Tr. 510) that Mrs. Benoit did not start around his vehicle which was obstructing the northbound lane, until she was only two car lengths from his vehicle. This testimony was not contradicted by Mrs. Benoit, and is entirely in line with her testimony at Tr. 225 and 229. Her exact testimony was :

Q. Where was your car when he pulled out across the road ?
A. Right by his.
Q. Would you say that it was as close as from me to you right now?
A. Oh, no, it was closer. As I passed by him, that’s when he turned on me.
^ »{* «fc
A. When I was passing by he pulled off.

At one point in her testimony Mrs. Be-noit testified that she was traveling 35 to 45 mph at the point of the collision. She later stated that this was her speed as she approached Camelle and that she slowed when she was “about three or four blocks —two or three” away. But she didn’t know exactly how much she slowed. Tr. 227. Was the jury manifestly wrong in finding that she was traveling 35 to 45 mph at impact? Was the jury manifestly wrong in finding that although the passing lane was clear and Mrs. Benoit knew that the Camelle vehicle was blocking her lane of traffic, Mrs. Benoit continued in her lane until only 30 to 40 feet from striking Camelle’s vehicle, and then made only a slight turn to the left so that she would just barely miss the Camelle vehicle?

Does a driver of a passing vehicle have the right to drive within inches of parked vehicles, or should he leave a reasonable clearance so that a slight movement by the driver or occupant of the parked vehicle might not cause an accident? As I read the majority opinion on rehearing, drivers on wide streets may drive so close to parked vehicles- that an accident will occur if a passenger in the parked vehicle opens the door only six inches.

I submit that this jury concluded that Mrs. Benoit had ample passing room and should have allowed for a margin of error on Camelle’s part.

Relevant here is a consideration of the jury’s province in determining credibility as compared with the limits of our review of the facts. Mrs. Benoit’s testimony concerning her disability was incredible. The majority on rehearing discounted her claim of pain and disability allegedly resulting from this accident. Did the jury commit manifest error in discounting Mrs. Benoit’s testimony concerning the manner in which the accident occurred ?

I would affirm the jury determination that this accident would have been avoided had Mrs. Benoit approached the Camelle vehicle in a proper manner. This accident was caused by Mrs. Benoit’s decision to remain in her lane until the last possible instant when the way was clear for her to enter the passing lane some 300 feet before impact. This negligence was a legal cause of the accident and bars her recovery.

I respectfully dissent.  