
    Thomas R. ERNST, Plaintiff-Appellee, v. Murphy O’BANNION et al., Defendants-Appellants.
    No. 4185.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 1973.
    Rehearing Denied June 27, 1973.
    Writ Refused Aug. 29, 1973.
    Stockwell, St. Dizier, Siebert and Viccel-lio by Robert W. Thomas, Lake Charles for defendants-appellants.
    Edward K. Alexander, DeQuincy, for plaintiff-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.'
   HOOD, Judge.

This is an action for damages arising out of an intersectional motor vehicle collision. The suit was instituted by Thomas R. Ernst against Murphy O’Bannion, Dur-ward Grayson Lyons, and Continental Insurance Company. Continental was the insurer of the other two defendants. Judgment was rendered by the trial court in favor of plaintiff, and against all defendants, and defendants have appealed.

The questions presented are whether defendant Lyons, driver of one of the vehicles involved in the collision, was negligent, and if so, whether plaintiff Ernst is barred from recovery by his own contributory negligence.

The collision occurred about noon on November 13, 1970, at the intersection of Planer Mill Road and Glendale Road, in a rural area of Beauregard Parish. Both of these roads were graveled, and each was about 30 feet wide. The intersection was uncontrolled, there being no stop signs or other devices located there to control traffic. Some shrubbery in that immediate area made the intersection a relatively blind one, and because of that shrubbery it was difficult for a motorist approaching the intersection from any direction to see other vehicles approaching from his right or left.

Immediately before the accident occurred, plaintiff Ernst was driving his pickup truck south on Planer Mill Road toward this intersection. The truck was towing a 16 foot two axle livestock trailer, which was loaded with a 1,000 pound cow and calf. The front part of plaintiff’s truck entered and traversed the intersection, but while his trailer was in about the center of that intersection it was struck on the right side by a one and one-half ton truck being driven by defendant Lyons, an employee of defendant O’Bannion. As a result of the accident, plaintiff’s truck and trailer were damaged, and the cow was injured to the extent that she had to be slaughtered.

Lyons was driving his truck east on Glendale Road just before the collision occurred. The front of his truck entered the intersection and traveled a distance which we estimate to have been from seven to fifteen feet when it struck the right side of the Ernst trailer.

The Ernst truck and trailer combination was being driven at a speed of 25 to 30-miles per hour as it approached the intersection. Ernst attempted to look through the shrubbery to his right before he reached the intersection, but he saw no one approaching. He nevertheless slowed down to a speed of from 20 to 25 miles per hour as he entered the crossing. When his truck reached about the center of the intersection, he looked to his right and then for the first time saw the Lyons truck approaching from his right in such a manner that he realized that a collision was imminent. Ernst then accelerated the speed of his truck-trailer combination in an effort to clear the intersection before it was struck, but the collision occurred before he had time to pull his trailer through. Ernst estimated that the Lyons vehicle was from 50 to 100 feet from the intersection when he first saw it approaching.

Lyons was traveling at a speed of approximately 35 miles per hour as he approached the intersection. He did not see the Ernst vehicle enter the crossing, but he did see it while plaintiff’s truck was about in the center of the intersection. Lyons estimates that he was only 6 or 8 feet from the Ernst vehicle when he first saw him, but he obviously was mistaken in that estimate, because the record shows that he left skid marks 25 feet long before the impact occurred.

The trial judge concluded that defendant Lyons was at least 100 feet from the intersection when he saw the Ernst vehicle and realized that an accident was imminent. He found that plaintiff had preempted the intersection, and that the sole proximate cause of the accident was defendant Lyons’ “rate of speed and lack of care.”

When this accident occurred the law provided that the driver of a vehicle approaching an intersection “shall yield the right of way to a vehicle which has entered the intersection from a different highway.” It also provided that when two vehicles enter an intersection from different highways at approximately the same time, “the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.” LSA-R.S. 32:121.

Our jurisprudence is settled that before a motorist can successfully rely on the doctrine of preemption he must show that he entered the intersection at a proper speed and sufficiently in advance of the car approaching from another direction to permit him to cross without requiring an emergency stop by the other vehicle. Entry into the intersection at the same time, or just a fraction of a second ahead of the other vehicle does not create a preemption. Byers v. Creel, 198 So.2d 739 (La.App. 4 Cir. 1967); West v. Travelers Indemnity Company, 225 So.2d 139 (La.App. 4 Cir. 1969); Robertson v. Ratcliff, 260 So.2d 155 (La.App. 2 Cir. 1972); Rhodus v. Allstate Insurance Company, 192 So.2d 226 (La.App. 4 Cir. 1966).

In Robertson v. Ratcliff, supra, the Second Circuit Court of Appeal held:

“Before one may claim the benefit of the rule of pre-emption, he must establish more than that he entered the intersection first. It must be shown that he made a lawful entry after first ascertaining that intersecting traffic was so far removed as to allow him a safe passage. He must also have entered the intersection with a bona fide belief and expectation that he could cross with safety.”

In Rhodus v. Allstate Insurance Company, supra, the Fourth Circuit Court of Appeal observed that:

“. . . The jurisprudence is so well settled that citation of authorities is unnecessary to the effect that pre-emption does not result from merely entering an intersection first. In order to preempt an intersection the motorist must show that he made a lawful entry therein after ascertaining that oncoming traffic is sufficiently far removed as to permit a safe passage and under the bona fide belief and expectation that he can negotiate a crossing with safety.”

And, in West v. Travelers Indemnity Company, supra, the court said:

“. . . Before he can successfully rely on preemption a motorist must show he entered the intersection at a proper speed and sufficiently in advance of the car on the intersecting street to permit him to cross without requiring an emergency stop by the other vehicle; entry into the intersection just a fraction of a second ahead of the other vehicle does not create a preemption.”

In the instant suit plaintiff Ernst did not ascertain that it was safe for him to enter the intersection before he proceeded to do so. It is obvious that it was not safe for him to enter, because a collision occurred despite the fact that Ernst increased the speed of his vehicle after entering the intersection, and Lyons skidded his wheels a distance of 25 feet prior to the impact, in efforts to avoid such an accident.

Plaintiff testified that he first observed the Lyons truck when the latter was from 50 to 100 feet from the intersection. After considering the relatively narrow widths of the two highways involved, the point in the crossing where the collision occurred, and the fact that Ernst increased the speed of his vehicle after entering the intersection while Lyons at the same time substantially reduced the speed of his, we feel that Lyons was nearer 50 feet, rather than 100 feet, from the crossing when Ernst first saw him. Even if Lyons should have been the greater distance from the crossing, however, it would have been apparent to Ernst had he looked that he could not have safely negotiated a crossing ahead of the Lyons vehicle.

This accident occurred in a rural area, and since there is nothing dn the record to show otherwise, we assume that the speed limit on these roads was 60 miles per hour for automobiles. LSA-R.S. 32:61. Vehicles approaching from Ernst’s right had the preferred right-of-way, and in view of the permissible speed limit we think Ernst was under a duty to carefully observe approaching traffic before proceeding into the intersection.

Our conclusion is that plaintiff Ernst was negligent in entering the intersection in front of an approaching preferred motorist when it was not safe to do so. His negligence in that respect was a proximate cause of the accident, and it bars him from recovery.

Plaintiff contends alternatively that defendant Lyons had the last clear chance to avoid the accident. We cannot agree.

Lyons had no reason to suspect that plaintiff would not yield the right-of-way to him until Ernst actually entered the crossing. According to plaintiff’s testimony, his truck and trailer combination was about 32 feet long, and we estimate that the front of his truck could not have traveled more than 45 or 46 feet between the time it first entered the intersection and the time of the collision. Since Lyons was traveling only 35 miles per hour at the moment Ernst entered the crossing, and thereafter Lyons reduced his speed by skidding his tires, it is apparent that the Lyons vehicle could not have traveled more than 70 to 80 feet after the danger became apparent. After allowing for reaction time, and the fact that these were graveled roads, we find that Lyons did not have an opportunity to avoid a collision after the danger became, or should have become, apparent to him.

Since we have concluded that plaintiff is barred from recovery by his own contributory negligence, it is unnecessary for us to determine whether defendant Lyons was negligent.

For the reasons herein assigned, the judgment appealed from is reversed, and judgment is hereby rendered in favor of defendants, and against plaintiff, Thomas R. Ernst, rejecting plaintiff’s demands at his costs. The costs of this appeal are assessed to plaintiff-appellee.

Reversed.

MILLER, J., dissents with reasons.

MILLER, Judge

(dissenting).

I respectfully suggest that the majority has disregarded the trial court’s determination of credibility and finding of fact. I do not find manifest error in the trial court’s determination that (1) plaintiff Ernst “. . . entered the intersection without fear of oncoming traffic and justifiably so as none was to be seen”; (2) defendant Lyons approached the intersection “. . . well after plaintiff had entered and almost cleared the intersection . . ; (3) due to defendant Lyons “rate of speed and lack of care . . .” Lyons was unable to avoid the accident; and (4) that plaintiff Ernst “ . . . had preempted the intersection and the negligence of defendant Lyons was the sole proximate cause of the accident.” Alternatively, if Ernst negligently entered the intersection, then it is submitted that defendant Lyons had the last clear chance to avoid the accident.

Both drivers drove into the intersection in their proper traffic lane. Lyons testified three times at Tr. 155 and 156 that he was on the right side of the road and in his proper lane. This places the point of impact in the southeast quadrant of the intersection and not “. . . in about the center of the intersection” as found by the majority. (Although the investigating officer put the point of impact “. . . in about the center of the intersection”, his testimony was general and not as specific as that of the drivers Lyons and Ernst.) Since both vehicles were in their right lanes, the majority erred in finding that the front of Lyons’ gasoline truck was seven to fifteen feet into the intersection when it struck the right side of Ernst’s cattle trailer. Instead Lyons was at most some five feet into the intersection when the front of Lyons’ gasoline truck struck the center (or rear) of the right side of the trailer. At that time Ernst’s pickup truck was entirely out of the intersection and the rear end of his trailer had cleared the north half or left side of Lyons’ road.

Lyons’ testimony was rejected by the trial court but has been accepted by the majority. How impressive is this witness ? Lyons testified four separate times to the impossible fact that both vehicles arrived at the intersection at approximately the same time. Tr. 75, 156 and 157. Three times Lyons testified that Ernst’s truck was six to eight feet ahead of him when he first saw the truck and trailer. Tr. 71. After the noon recess, Lyons testified on two occasions that “I first seen this other vehicle in front and to my left —just a very few feet in front of me.” Tr. 149, 150. Lyons admitted that he made no effort to look for approaching traffic from his left or right because the intersection was obscured by brush and trees. Tr. 72, 152. Lyons also testified that he considered that he had the right of way and made no attempt to look to the left or right or to slow before entering the intersection. Tr. 73, 152. Lyons testified that he believed that he struck the trailer before he applied his brakes. Tr. 74, 75, 154, 155.

It was established that the impact was “rather horrible” and caused severe damage to the steel cattle trailer. Tr. 121.

Defendant’s independent eye witness Mrs. Odessa Higginbotham testified at Tr. 143, that the trailer was almost out of the road when it got hit by the gasoline delivery truck.

The majority erred in stating that when Ernst first saw the Lyons truck approaching from his right that Ernst realized that a collision was imminent. Ernest did not so testify. The majority has substituted its finding that Lyons’ testimony is more credible and has disregarded the trial court’s rejection of his testimony. Lyons did testify that the accident was imminent when Lyons first saw Ernst. This only indicates that Lyons failed to see what he should have seen.

On the other hand, Ernst consistently testified on several occasions that he thought the collision had been avoided and that the collision could have easily been avoided had Lyons either slowed or maneuvered to his left. Typical of Ernst’s testimony is his explanation at Tr. 81. “. . .1 looked and looked for all coming traffic, and I saw none. I entered the intersection, and looked, and saw the truck coming; and the only response I could do was to accelerate, which was very minor for a truck pulling a trailer. And as I crossed the intersection, I knew the trailer and truck was behind me, and I most assuredly thought that we had missed a collision. I knew the truck was close. I thought that we had missed at the intersection until I felt the collision.” Ernst testified at Tr. 84 that Lyons told him after the accident "... that he did not see me in time to brake, or did not attempt to turn his steering wheel to avoid the accident.” Lyons did not deny this statement.

The trial judge specifically found that defendant Lyons was at least 100 feet from the intersection when Lyons (should have seen) that an accident was imminent. The majority has substituted its own finding that Lyons was nearer SO feet from the crossing when Ernst first saw him.

The majority indicates that there is a 60 mph speed limit as this blind uncontrolled intersection of two country gravel roads of equal dignity. I submit that each vehicle had to prepare to yield to traffic approaching from the right. (There must be something wrong with the theory that drivers can approach such an intersection at high speed in disregard of vehicles approaching from their left, and are only to yield to vehicles approaching from their right.) Just as Ernst had to slow to yield to traffic approaching from his right, Lyons was obligated to slow to yield to traffic approaching from his right. Ernst did slow before entering and checked both left and right for approaching traffic. Because of the blind intersection he could not see far enough down the road to see the approaching gasoline truck. Lyons made no effort to slow or to look to his left or right. Had Lyons kept a lookout ahead of him, he would have seen Ernst enter the intersection at a time when Lyons could have easily slowed or maneuvered to his left to avoid the accident. Had Ernst not slowed before entering the intersection, he would have cleared the intersection before Lyons reached it.

The cases relied on by the majority are distinguished on the facts. Ernst’s slower moving vehicle had completely crossed the intersection and the trailer had cleared the north half of the intersection when the faster moving gasoline truck struck the center or rear of the right side of the trailer. At impact, the gasoline truck had proceeded only five feet into the intersection.

If the trial court erred in finding that Ernst preempted the intersection and if in fact Ernst negligently entered the intersection, Ernst’s negligence was not a legal cause of the accident because Lyons had the last clear chance to avoid the accident.

Last clear chance will apply .when a plaintiff establishes that he was in a position of peril of which he was unaware or from which he could not extricate himself, and when defendant should have discovered the peril in time to take reasonable actions to avoid the accident. Richard v. Southern Farm Bureau Casualty Ins. Co., 212 So.2d 471 (La.App. 3 Cir. 1968).

Plaintiff pled last clear chance and the requirements for application of this rule are met in the instant case. The evidence indicates that when Ernst became aware of his peril, Ernst attempted to accelerate to avoid the collision but was unable to speed up enough because of the attached loaded trailer. Lyons was at least 100 feet from the intersection when he should have known that a collision was imminent.

The trial court properly rejected Lyons’ testimony that the two vehicles reached the intersection at the same time. Had Lyons maintained a proper lookout he would have seen Ernst enter the intersection in time to slow and/or maneuver to his left to avoid the accident. Because of the length of Ernst’s pickup truck and trailer, Ernst’s slow rate of speed, the time it took to cross the intersection, the fact that the trailer was completely clear of the north half of the intersection when struck, and the fact that Lyons had just entered the intersection at impact, Lyons should have been able to observe the truck and trailer and should have been able to avoid the collision. Thomas v. Lee, 243 So.2d 536 (La.App. 1 Cir. 1970).

If the motorist on the favored street sees, or should see, that the driver of the other vehicle is not going to yield the right of way and thereafter he has a reasonable opportunity to avoid the accident by taking evasive action, then a duty rests on him to do so. Biggs v. Verbois, 151 So.2d 172 (La.App. 1 Cir. 1963).

I submit that the majority has disregarded the trial court’s factual determination which was in turn based on an evaluation of the credibility of the witnesses, and therefore respectfully dissent. 
      
      . This also reduces the effectiveness of the officer’s testimony that the gasoline truck laid down 25 feet of skidmarks before impact. He was the only witness to find skidmarks on the gravel road and his testimony at Tr. 116 was: “ . I believe I counted twenty-five feet of skidmarks prior to the accident.” Lyons’ truck was 22 feet long. Since the skid-marks would start at the point where his rear wheels were located when the brakes were firmly applied, Lyons’ testimony (that he didn’t apply his brakes until impact with the trailer) is supported.
     