
    Mrs. Barbara Akers MARTIN, Plaintiff-Appellee, v. FIREMEN’S INSURANCE COMPANY OF NEWARK, NEW JERSEY, Defendant-Appellant.
    No. 9377.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1961.
    Rehearing Denied March 10, 1961.
    Certiorari Granted April 7, 1961.
    
      Mayer & Smith, Shreveport, for appellant.
    Henri Loridans, Bossier City, for ap-pellee.
    Before GLADNEY, AYRES, and BOLIN, JJ.
   BOLIN, Judge.

This suit arises out of an accident that occurred in Caddo Parish just beyond the city limits of Shreveport on March 15, 1959. The plaintiff, Mrs. Barbara Akers Martin, was riding on the front seat of an automobile driven by her husband, Obie Martin, which was traveling outbound on a road leading to Blanchard, Louisiana. While so proceeding, the vehicle was involved in a head-on collision with an inbound automobile driven by Claude Moore. The collision occurred almost entirely within the outbound lane of the highway upon which the Martin car was entitled to travel.

As a result of this accident the plaintiff suffered pe'rsonal injuries for which she instituted a direct action against the defendant, Firemen’s Insurance Company of Newark, New Jersey, as the liability insurer of the automobile being driven by her husband. The case was tried before a jury which returned a verdict in favor of the plaintiff for the sum of $10,000. The defendant filed an application for a new trial which was predicated principally upon the contentions that plaintiff had failed to establish with reasonable certainty that the defendant’s insured was guilty of any negligence which was the proximate cause of the accident, and further that the plaintiff, having had the same opportunity to observe the conditions as they existed and developed, was guilty of the same negligence as her husband; and that her failure to warn him of these conditions was contributory negligence on her part. This motion for a new trial was amended so as to allege the discovery of new evidence on the part of the defendant after the original trial.

The defendant’s motion for a new trial was overruled and, in connection therewith, the trial judge assigned written reasons for his ruling wherein he gave his version of certain factual matters and stated he was in complete agreement with the conclusion reached by the jury.

In all cases such as this there is naturally some conflict in the evidence and this case is no exception. Under such circumstances, it is the duty of the appellate court to make a careful examination of the record and to ascertain therefrom, if possible, the conclusions reached by the trial court on such factual matters and to adopt same in its determination of the legal issues involved, unless it finds clear and manifest errors in such conclusions. After an examination of the record in this case, we find no such error committed by the jury, or-judge below, and therefore, we must accept' such findings in our determination of the case. In his written reasons for refusing the defendant a new trial, the district judge found the facts to be as follows:

“The undisputed and uncontroverted evidence in this case shows that: The plaintiff was a passenger in an automobile; her host is the defendant’s insured; the accident happened- on a relatively straight and level stretch of 2-lane blacktop highway; the highway on which the accident occurred had a very narrow shoulder on the insured’s right-hand side of the road, which descended sharply into a deep ditch along the insured’s right-hand side of the road; the accident was a head-on collision in the insured’s own lane of travel'; the other car involved in the accident was driven by an intoxicated negro, whose passenger appeared and testified at the trial; the intoxicated negro was attempting to pass another vehicle at the time of the accident.
“Also uncontroverted and undisputed are the facts that the straight stretch of highway on which the accident occurred is something in excess of 1000 feet in length; that the passenger in the negro’s automobile and the insured had an unobstructed view of each other when the automobiles were something more than 1000 feet apart; that both vehicles were traveling at a rate of speed between 40 and 50 miles per hour; that the insured did observe the negro’s automobile approaching in his lane at approximately 1000 feet distant, but relied on his belief that the negro would return to his own proper lane of travel; that when it became apparent that the negro would not leave the insured’s lane of travel, the insured attempted to bring his automobile to a halt, both vehicles skidding a considerable distance to the point of impact.”

Many “head-on” collision cases have been decided by the Appellate Courts of this State, and while the facts in each naturally vary on such matters as distance, speed, location of the approaching vehicle in relation to the center of the highway, etc., the same principle of law has been applied in every case. Our courts have uniformly adopted the following rule which we quote from Blashfield’s Cyclopedia of Automobile Law & Practice, Permanent Edition, Vol. 2, § 919:

“A motorist has a right to assume that the driver of a vehicle coming from the opposite direction will obey the law, and to act upon such assumption in determining his own manner of using the road. A driver, therefore, proceeding on the right side of the traveled highway, may assume that the driver of a vehicle approaching on the same side, or on his left-hand side, will do all that a reasonably prudent person, under all the circumstances, would do to avoid a collision, which ordinarily would be to yield half the way, or to turn out in time to avoid a collision, and that such driver will not force him, in violation of the statute or ordinance, or the law of the road, to turn from the part of the road on which he is lawfully driving.
“Likewise, a motorist on the right side of the road and traveling in a lawful manner can assume that one approaching in the opposite direction will control his car in obedience to the law of the road and will not suddenly turn across his path.
“These assumptions may not be indulged in, however, after he sees or ought to see, from the situation of the cars or highway or the conduct of the approaching driver, that they are unwarranted. In other words, the duty of an automobile driver, who is on the right side of the street, to stop or take other precautions to avoid a collision with an approaching vehicle, only arises when by due care he discovers that another on the wrong side of the street cannot or will not himself turn to the right to clear his ivay.” (Emphasis ours.)

Applying the above rule to the facts of this case, it is evident that Claude Moore was guilty of the grossest type of negligence in operating his vehicle entirely on the wrong side of the road, and continuing such negligent operation until the impact occurred. It is likewise clear that Obie Martin had a right to assume that the motorist who was approaching him on the wrong side of the road would yield or turn out in time to avoid the collision. The serious question to be decided is whether under the facts of this case Obie Martin indulged in this assumption too long. Relative to this question, an examination of the record discloses that the judge below gave the following charge to the jury:

“The question of whether or not the driver of an oncoming automobile observing a car on the wrong side of the highway * * * has the last clear chance of avoiding an accident is a question for the jury. The answer depends on whether the oncoming driver observed or should have observed that the other driver had created or was creating a dangerous situation, and whether, after such time, the oncoming driver could have avoided the accident in question, but, nevertheless failed to do so.”

An examination of the jurisprudence shows that this question has been presented to our Appellate Courts on many occasions, and that in some of the cases the operator of the vehicle on the right side of the road was found free of negligence. It would serve no useful purpose to cite all of these cases. An examination of Wood v. Manufacturers Casualty Ins. Co., La.App. 2 Cir., 1958, 107 So.2d 309, will reveal the citation of many other cases on the same point. In that case, the driver of the vehicle on the right side of the road was found to be free of any negligence. However, as correctly pointed out therein, the decision was predicated on factual findings that the driver only discovered the peril of the approaching vehicle approximately 150 feet away.

One of the most recent cases holding the driver on the right side of the road was guilty of negligence for indulging in the assumption for an unreasonable length of time that the driver approaching him on the wrong side of the road would return to his own proper lane of travel is Chouest v. Remont, La.App. 1 Cir., 1955, 81 So.2d 568, 570. In that case, Judge Tate, as the organ-of the court, correctly stated the rule a& follows:

“Whether or not the oncoming driver observing the other car executing an unusual maneuver in his path and on its wrong side of the highway has the last clear chance of avoiding the accident is normally a question of fact, depending on whether the oncoming driver did or should have observed that the other driver had created or was creating a dangerous situation; and whether after such time, the oncoming driver could have avoided the accident in question, but nevertheless failed to do so, Rottman v. Beverly, 183 La. 947, 165 So. 153; Jackson v. Cook, 189 La. 860, 181 So. 195; Russo v. Texas and Pacific Railroad Co., 189 La. 1042, 181 So. 485; Cassar v. Mansfield Lumber Co., 215 La. 533, 41 So.2d 209.”

Therefore, in the final analysis, we have before us a determination of a factual issue. Under these circumstances it is not necessarily the duty of this court after reading the record to substitute its own judgment for that of the judge and-jury below, but to accept their findings unless manifest error is found therein. While a reading of the record of the instant case fully convinces us that this factual matter could have been resolved either way by the court below, we are unable to find manifest error in the conclusions that were reached. In overruling the defendant’s motion for a new trial, the trial judge had this to say:

“Traveling at a rate of speed about 66 feet per second (45 miles per hour), the insured observed or should have observed the hazardous condition at least 1000 feet away from him. From this point, he was about 500 feet from the point of impact. Traveling at a constant rate of 45 miles per hour, he would have reached the point of impact in something more thaii seven seconds. Assuming that he used up nearly two seconds in attempting to ¡bring his car to a halt, the uncontra-‘dicted evidence shows that he continued down the road in the face of apparent danger, taking no action to ■extricate himself, for a period of five ■seconds.
■“The jury concluded, and the Court agrees, that this constitutes negligence which was a proximate cause of the accident.”

Having studied the entire record in this case, we find no manifest error in the conclusion reached below as to liability.

We now pass to the defendant’s contention that the plaintiff was guilty of independent contributory negligence in failing to warn her husband of the impending danger. It is elementary that such a plea is an affirmative defense, and accordingly, the burden of proof rests upon the defendant. There was no evidence introduced that the plaintiff knew or should have known of the impending danger so as to warn her husband, and the judge and jury below, were correct in rejecting this plea. In the absence of a showing that a guest has actual or constructive knowledge that a driver is not competent or fit to operate a vehicle such guest may rely on the driver and is not required to monitor or pay attention to the road and other traffic conditions. Delaune v. Breaux, 1932, 174 La. 43, 139 So. 753; Singley v. Thomas, La.App. 2 Cir., 1950, 49 So.2d 465.

In the defendant’s motion for a new trial below, it was alleged that it had been discovered that Obie Martin had made prior statements to the Assistant District Attorney that were contradictory to those made by him during the trial. This application was overruled by the district judge, and even though no written reasons were assigned, it appears to us that his ruling was predicated on the lack of due diligence on the part of the defendant. In any event, the granting of a new trial is a matter vested, within the sound discretion of the trial judge, and his ruling thereon will not be disturbed unless it clearly appear that he has abused his discretion. Guidroz v. Travelers Ins. Co., La.App. Orleans, 1958, 99 So.2d 916. Suffice it to say that we do not find any such abuse in his refusal to grant a new trial herein.

For the reasons expressed above the judgment below is affirmed at the appellant’s cost.

Affirmed.

GLADNEY, Judge

(dissenting).

I respectfully dissent insofar as the majority opinion finds Obie Martin, Jr., guilty of negligence proximately causing the accident.

I am in accord with the statement of this case as formulated by the majority opinion. Accordingly, my appreciation of the issues involved herein is predicated upon the finding of facts as set forth in the lower court’s written reasons for refusing a new trial, which findings are quoted in the majority opinion. It is our prerogative, and, in fact, our duty to review most carefully the lower court’s conclusions of law deduced from its factual findings.

The majority opinion quite correctly states the presumption which our jurisprudence has uniformly attributed to motorists traveling in a lawful manner on the right-hand side of the highway. In the interest of clarity I quote that portion of § 919, Blashfield’s Cyclopedia of Automobile Law & Practice, Vol. 2, which summarizes the extent of that presumption:

“A motorist has a right to assume that the driver of a vehicle coming from the opposite direction will obey the law, and to act upon such assumption in determining his own manner of using the road. A driver, therefore, proceeding on the right side of the traveled way, may assume that the driver of a .vehicle approaching on the same side, or on his left-hand side, will do all that a reasonably prudent person, under all the circumstances, would do to avoid a collision, which ordinarily would be to yield half the way, or to turn out in time to avoid a collision, and that such driver will not force him, in violation of the statute or ordinance, or the law of the road, to turn from the part of the road on which he is lawfully driving.
“Likewise, a motorist on the right side of the road and traveling in a lawful manner can assume that one approaching in the opposite direction will control his car in obedience to the law of the road and will not suddenly turn across his path.
“These assumptions may not be indulged in, however, after he sees or ought to see, from the situation of the cars on highway or the conduct of the approaching driver, that they are unwarranted. In other words, the duty of an automobile driver, who is on the right side of the street, to stop or take other precautions to avoid a collision zvith an approaching vehicle, only arises when by due care he discovers that another on the wrong side of the street cannot or zvill not himself turn to the right to clear his zvay. It follows that his right to assume that the other driver zvill comply with the lazvs of the road is not absolute, but may be qualified by the particular circumstances such as the other vehicle’s proximity, position and movement and the condition of the road, including the usable width.” (Emphasis supplied.)

Applying this well-recognized test to the case at bar I cannot subscribe to the conclusion reached by the court below and affirmed by the majority herein. I accept as established that Moore was attempting to pass another vehicle when the accident occurred. It necessarily follows that Martin’s first observation of the maneuver, when still some 1,000 feet distant, could in no wise serve as a cause of immediate alarm or recognition of Moore’s peril, for no peril then existed. Manifestly, Moore had ample time and space at the 1,000 feet distance to either complete his maneuver or abandon his attempt by decelerating and returning behind the preceding vehicle. Consequently, the reasoning of the lower court, which was quoted with approval by the majority herein, is, in my opinion, erroneous, inasmuch as it states:

“Assuming that he (Martin) used up nearly two seconds in attempting to bring his car to a halt, the uncontra-dicted evidence shows that he continued down the road in the face of apparent danger, taking no action to extricate himself, for a period of five seconds.” (Emphasis supplied.)

There was no apparent danger within legal intendment until such time as Martin by the exercise of due care discovered or could have discovered that Moore could not or would not himself turn to the right to clear his way. Blashfield, § 919, supra.

Accordingly, the questions for our determination, as were correctly formulated by the majority opinion, are: whether Martin indulged in his presumption after such time as he should have discovered the peril, to-wit, that Moore could not or would not return to his proper lane; and whether Martin could have avoided the collision had he timely discovered the peril. ■ Moore could have returned to his proper lane, either by completing or abandoning his maneuver, in a much shorter time, in fact, almost instantaneously, then the approximately three seconds which it would have taken Martin to bring his car to a stop. Blashfield’s Cyclopedia of Automobile Law & Practice, Vol. 9C, § 6237 at 413; Barrett, Mechanics of Control and Lookout in Automobile Law, 14 Tulane Law Review, 493, 503 (1940). In that regard our Supreme Court, in a frequently cited discussion of the doctrine of discovered peril, stated:

“Of course, there can be no recovery against defendant if he used due care in discovering the peril and after discovering it could not avoid the accident, as in such case there would be no negligence at all on the part of the defendant.” Rottman v. Beverly, 1936, 183 La. 947, 165 So. 153, 157.

I am at a loss to understand, therefore, how Martin could have had time to avert the accident after having discovered that Moore could not return to his proper lane.

In light of the foregoing discussion I am of the opinion that any fault on Martin’s part must be predicated on a finding that he should have discovered that Moore would not return to his proper lane, and that had he made such a discovery he would have had sufficient time to avert the accident. In his regard I re-emphasize, at the risk of being repetitious, the statement in Blashfield, § 919, that:

“It follows that his right to assume that the other driver will comply with the laws of the road is not absolute, but may be qualified by the particular circumstances such as the other vehicle’s proximity, position and movement and the condition of the road, including the usable width.” (Emphasis supplied.)

The proximity, position and movement of Moore’s vehicle when originally observed by Martin were certainly commensurate with that of a normally executed passing maneuver. The 111 feet skid marks left by the Moore vehicle indicate that the driver thereof began breaking his vehicle several seconds previous to the impact. The usable width of the road was such that the only possible preventive action available to Martin was to bring his vehicle to a complete stop, which action in order to in fact be preventive, would have had to be begun more than three seconds previous to reaching the point of impact. Under the circumstances, viz., being confronted with a passing maneuver normal in its inception and observing the on-coming motorist taking preventive action, I cannot agree that Martin should have discovered that Moore wotdd not return to his proper lane. The skid marks of Moore’s vehicle measured 111 feet to the point of impact and were twice the length of those left by Martin’s car. This indicates clearly Moore applied his brakes before Martin took similar action. At the moment Moore decided to apply his brakes instead of returning to his own lane of travel, the Moore and Martin vehicles were, with due allowance for reaction time, over 250 feet apart or approximately five-sixths of a normal city block. When Moore made this unwise decision Martin had no choice except to apply his brakes.

Furthermore, with regard to the application of the doctrine of last clear chance, interchangeably designated as discovered peril, the Supreme Court has stated:

“The difference between the District Court and the Court of Appeal in testing and determining the ability of the truck driver to have avoided the accident after he started to make his turn, and at a time when he should have seen the young man on the bicycle, is a very narrow one. It involves as we have said various calculations of the rate of speed, of the time it takes to react to an emergency and the application of brakes as well as the distance in which a truck, like the one in this case, can be brought to a stop, travel-ling at a given speed. As a result of those calculations, especially those of the rate of speed of the respective vehicles which are based principally on assumptions, the difference is one of seconds in the matter of time, and of a few feet only in the matter of distance; too little in our opinion to justify the application of the doctrine of last clear chance and discovered peril. ‘The doctrine of the last clear chance is one involving nice distinctions, often of a technical nature, and courts should be wary in extending its application.’ Hutcheson v. Misenheimer, 196 [169] Va. 511, 194 S.E. 665, 667.” Bergeron v. Department of Highways, 1952, 221 La. 595, 60 So.2d 4, 8; Maryland Cas. Co. v. Allstate Ins. Co., La.App. 2 Cir., 1957, 96 So.2d 340.

In Chouest v. Remont, La.App. 1 Cir., 1955, 81 So.2d 568, the doctrine of discovered peril was invoked against a motorist who failed to avoid a collision with an oncoming vehicle which had swerved into the opposite lane of travel. The case is clearly distinguishable from the instant situation inasmuch as no attempted passing maneuver was involved in Chouest. Consequently, the circumstances therein, viz., proximity, position and movement of the encroaching vehicle, were such that the properly traveling motorist should have immediately discovered that the encroaching vehicle would not return to its right lane.

Also distinguishable for the same or related reasons are the authorities cited in the Chouest case, some of which are included in the quotation appearing in the majority opinion, specifically, Rottman v. Beverly, 1935, 183 La. 947, 165 So. 153; Jackson v. Cook, 1938, 189 La. 860, 181 So. 195; Russo v. Texas & Pacific R. Co., 1938, 189 La. 1042, 181 So. 485; Prevost v. Smith, La.App. 1 Cir., 1940, 197 So. 905; Redden v. Blythe, La.App.Orleans, 1943, 12 So.2d 728; Cassar v. Mansfield Lbr. Co., 1949, 215 La. 533, 41 So.2d 209. And, after careful review of our jurisprudence relative to the doctrine of discovered peril, I consider the opinion expressed in this dissent to be thoroughly consistent therewith.

That portion of the majority opinion disposing of the issues of contributory negligence and the lower court’s refusal to grant a new trial is, in my opinion, correctly reasoned and decided.

For the foregoing reasons, I dissent from the majority opinion insofar as it holds Obie Martin, Jr., guilty of negligence proximately causing the accident herein sued upon.

Rehearing denied;

GLADNEY, J., dissents.  