
    Earl BRENNECKE et al. v. TRANSPORTATION INSURANCE CO. et al.
    No. 10280.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied En Banc March 5, 1976.
    Writ Refused April 13, 1976.
    John W. Anthony, Bogalusa, for appellants.-
    Tom H. Matheny, Hammond, for appel-lees.
    Before LANDRY, ELLIS, BLANCHE, LOTTINGER and YELVERTON, JJ.
   BLANCHE, Judge.

The plaintiffs, Earl Brennecke and Bernadine Hall Brennecke, are the parents of Larry D. Brennecke, a minor, and brought this suit against the defendants, Mrs. Marcia Crockett and her husband Walter Crockett, and their liability insurer, Transportation Insurance Company, for injuries sustained by their minor son as a result of an automobile-bicycle collision.

The trial judge found that both Mrs. Crockett, the driver of the automobile, and Larry Brennecke, who was riding the bicycle were negligent but that Mrs. Crockett had the last clear chance to avoid the accident. He rendered judgment in favor of plaintiffs in the sum of $15,000 for the injuries sustained by their minor son and in the further sum of $2,317.90 for special damages.

The single error assigned by the defendants on appeal is that this is not a proper case for the application of the doctrine of last clear chance. We agree and reverse, because we find that Mrs. Crockett was not guilty of negligence since no duty was breached by her toward young Brennecke.

The accident happened on a street in a residential subdivision in Hammond, Louisiana. Mrs. Crockett had been visiting her mother-in-law who lived about four houses down the street from the point of the accident. After leaving her mother-in-law’s home, Mrs. Crockett proceeded in an easterly direction on David Drive. She was accompanied by her young children and her sister-in-law, Miss Debra Crockett, who was seated on the right front seat. The record shows that Mrs. Crockett was driving between ten and twelve miles per hour and at the time it was raining quite hard. Mrs. Crockett had her lights and windshield wipers on and was driving slowly because of the downpour. Both Mrs. Crockett and Debra Crockett were looking straight ahead as they approached oncoming traffic. There is no evidence that any children were playing in or near the street. Though Mrs. Crockett knew there were children in the neighborhood, she did not expect to see any at that time because of the hard rain. Thus, while her attention was directed toward approaching traffic in a hard rain, young Brennecke and his friend Kevin Sims were in the driveway leading to the Sims carport, and they decided to leave on their bicycles to ride over to Larry’s house to play. With young Brennecke in the lead, they rode down the Sims driveway out into the street. At the moment young Brennecke reached the edge of the street, he collided with the. right front side of the Crockett car at a point approximately a foot or so behind the headlights. Neither Mrs. Crockett nor Debra Crockett saw the Brennecke youth until a moment before he struck the right side of the Crockett vehicle.

Marie Carver, a disinterested witness who at the time of the accident was proceeding in the opposite direction from Mrs. Crockett at about the same speed, was able to see all that transpired up until the moment of impact. When she first observed the youths, they were halfway up the driveway, facing toward the Sims house. The driveway was estimated by another witness to be approximately forty feet long. Mrs. Carver realized that an accident was about to occur because the young boys turned and started toward the street when, according to her estimate, Mrs. Crockett was at most a car’s length away. She described the boys as coming down the driveway “suddenly” and as taking “just a couple of seconds.”

The Crocketts and Mrs. Carver testified that Larry Brennecke ran into the car rather than the Crockett vehicle colliding with him. Photographs of the vehicle introduced into evidence showed a dent on the side of the fender where the bicycle struck the side of the car. Significantly, Mrs. Carver testified that she applied her brakes when she saw the boys start down the driveway and that she was driving at about the same speed as Mrs. Crockett. Though she immediately applied her brakes at the time of the collision, she was unable to bring her vehicle to a complete stop and, like Mrs. Crockett, stopped about a car’s length past the point of collision.

Undoubtedly, Mrs. Crockett had no chance to avoid the collision. The events leading up to this unfortunate accident happened very quickly, within a few seconds, and when Mrs. Crockett was so near the Sims driveway that she had no chance, either last or clear, to bring her vehicle to a stop in order to avoid the collision.

However, the crucial question in the case is not whether she had the last clear chance to avoid the accident but whether she was even under a duty to observe young Brennecke in the Sims driveway on his bicycle under the conditions herein-above described. Absent a showing that Mrs. Crockett should have been alerted to the fact that children were playing in the area at the time and would thus come under a duty to look out for their safety, we find no duty on her part to look for young Brennecke poised in a heavy rain halfway up the Sims driveway and to guard against the possibility of his running into the street. As we see it, traffic conditions at that particular time were adverse and her duty was to keep her eyes on the road ahead and 'on approaching traffic and not on young Brennecke who might suddenly descend into the street from a point halfway up a private driveway.

To impose such a duty on her under these circumstances would virtually make her an insurer of young Brennecke’s safety. Rainwater v. Boatright, 61 So.2d 212 (La.App. 2nd Cir., 1952); Kessinger v. Ashford, 165 So.2d 534 (La.App. 1st Cir., 1964).

Finding no negligence on the part of Mrs. Crockett, we reverse the judgment of the trial court and render judgment in favor of defendants, Mrs. Marcia Crockett, Walter Crockett and Transportation Insurance Company, and against plaintiffs, Earl Brennecke and Bernadine Hall Brennecke, dismissing plaintiffs’ suit at plaintiffs’ costs.

Reversed and rendered.

LOTTINGER, J., concurs.

YELVERTON, J., dissents with reasons.

YELVERTON, Judge

(dissenting).

I respectfully submit that there is no basis on this record to reverse the trial judge. The majority concludes that Mrs. Crockett was under no duty to observe the boys because there was a “hard rain” in progress and her duty in a “heavy rain” was to look straight ahead. The trial judge in his written reasons for judgment found that the children rode out of the driveway in a “light rain”, that “the defendant driver had a completely clear and unobstructed view of the entire length” of the driveway and that “a mere glance in that direction would have been sufficient to reveal the presence of the child and his companion”. The trial judge was impressed by the fact that Mrs. Carver, the other driver on the street who witnessed the development of the accident and the accident itself, said she saw the children, that she was afraid an accident might happen, and she accordingly brought her vehicle to a stop. I do not find manifest error in these factual conclusions. The record adequately supports them. While there was some testimony it was raining hard, there was at least an equal amount of testimony that it was not. Two witnesses testified it was merely sprinkling. The police, arriving after the accident, found the streets dry. Positive proof that the rain was not bad enough to obstruct vision lies in the testimony of Mrs. Carver, whose testimony the majority accepts as true. She saw everything, and she was a greater distance from the accident scene than Mrs. Crockett. I am compelled to conclude, as did the trial judge; that Mrs. Carver saw what she saw because the rain was not coming down hard enough to prevent her from seeing it. In my opinion, the trial court’s conclusions of fact as to the force of the rain and conditions of visibility have a reasonable basis in the record, and I would accept his findings of fact that only a light rain was in progress and that this should not have obstructed Mrs. Crockett’s view any more so than it did Mrs. Carver’s. I would follow the test for appellate review laid down in Canter v. Koehring Company, 283 So.2d 716 (La.1973):

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.”

I also disagree with the majority’s conclusion that Mrs. Crockett had no chance to avoid the collision. Here again, the majority bases its reasoning upon factual conclusions which differ from those found by the trial court, without first having determined that the trial court was manifestly erroneous in its conclusions of fact.

The majority gives three reasons why Mrs. Crockett had no chance to avoid the accident. The first reason given was that the boy’s bicycle struck the car (about a foot from the front end) rather than the car striking the boy; I submit this fact has no relevance to last clear chance. The second reason was that Mrs. Carver, the other driver, was unable to stop until she had reached a point about a car’s length past the point of collision. I submit that this is an incorrect factual conclusion. The record reveals she stopped a car length before the point of collision. Based on the erroneous assumption that Mrs. Carver stopped a car length past the point of collision, the majority concludes that Mrs. Crockett likewise could not have stopped in time. There is nothing in the record to support the majority’s conclusion that Mrs. Carver stopped a car length past the point of collision (except a similar comment in defendants’ brief). There are only two places in the entire testimony where Mrs. Carver’s stopping point is mentioned and that is in her own testimony. In one place she said she stopped a car length from the accident. In the other place she said:

“Well, the accident was in front of me and I stopped a car length at most in front of the accident . . .”

The third reason the majority gives for concluding Mrs. Crockett had no chance to avoid the collision is based upon what I submit is still another erroneous conclusion of fact. The majority places Mrs. Crockett’s car one car length from the Sims driveway when the events leading up to the accident happened, concluding therefrom that she was too close to the scene to have avoided the accident. The events leading up to the accident, as testified to by Mrs. Carver, began with the boys 20 feet up the driveway, facing away from the street, with one foot on the ground. It is not possible that Mrs. Crockett traveled only a “car length” during the time it took the boys 'to mount their bicycles, turn around, and from a standstill, travel 20 feet down the driveway and some more distance out into the street to strike the front end of her car. Traveling 10 to 12 miles per hour, Mrs. Crockett had to be much farther than a car length down the street when the accident began to develop, and had she seen what she should have seen, she had ample time to have stopped or slowed down sufficiently to avoid the accident. The trial judge so concluded, and I can find no manifest error in this conclusion.

This accident happened in the afternoon after school hours in a residential area known to be frequented by children and where a IS mph speed limit was posted. The trial judge found conditions of visibility were unobstructed, a fact which has ample support in the record, particularly in the testimony of the disinterested witness who saw the accident develop and was able to stop her car before the point where it happened. The trial judge found that Mrs. Crockett should have seen the boys and, had she done so, she could have avoided the accident. I cannot find manifest error in the trial judge’s findings both as to the duty and opportunity of defendant to avoid the accident and, for .these reasons, I would affirm.  