
    Mrs. Susie Daigle, wife of/and Walter DELGRANDILE v. EMPLOYERS INSURANCE OF WAUSAU and Younger Brothers, Inc.
    No. 6758.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 5, 1975.
    Rehearing Denied Sept. 9, 1975.
    Schafer & Schafer, Timothy G. Schafer, New Orleans, for plaintiffs-appellants.
    Francipane, Regan & St. Peé, Chester Francipane, Metairie, for defendants-appel-lees.
    Before REDMANN, STOULIG and SCHOTT, JJ.
   STOULIG, Judge.

Plaintiffs, Mr. and Mrs. Walter Del-grandile, filed suit against Younger Brothers, Inc., owner of a tractor-tanker rig, and its liability insurer, Employers Insur-anee of Wausau, for damages incurred when their automobile, driven by Mrs. Del-grandile, collided with the rear wheel of the heavy rig in the traffic circle on the west bank of the Huey Long Bridge approach in Jefferson Parish. Finding plaintiff driver guilty of contributory negligence, the trial court dismissed this' suit. Plaintiffs have appealed.

We affirm. The record reveals both drivers, familiar with this area, entered the circle from Highway 90 and intended to cross to the east bank of the Mississippi River. The circle is composed of two unusually narrow lanes (estimated by the state trooper who conducted the accident investgation at 11 feet) divided only by a broken-dash white center line. From the testimony it is evident that Jerry Jones, driving the rig, entered the circle first. He was moving in low gear at approximately 5 miles per hour in the right lane and the left rear wheels of the tanker were riding the center stripe. Shortly afterward Mrs. Delgrandile reached the entrance to the circle and maneuvered her car into its left lane after ascertaining there was no traffic approaching from her left that would impede her safe entrance. After accelerating to a speed of 20 miles per hour at a distance she alternately estimates at either two car lengths or 100 feet (apparently an honest discrepancy caused by her inability to gauge distance), she felt an impact to the right side of her car and then noticed that she had collided with the left rear tanker wheel. After the initial contact, plaintiff’s car continued for a distance of 20 feet before stopping. At no time before impact did Mrs. Delgrandile see the rig she was in the process of passing and she was not able to state in what position its wheels were when they came in contact with her car.

Plaintiff driver, who frequently passes through this circle, agrees the lanes are unusually narrow. Thus she should have been aware that a passing maneuver in this narrow, curved roadway was more precarious than it would have been had she been on a straight standard-sized two-lane highway. It is difficult to perceive how she could have avoided seeing the unusually large truck she was overtaking when the accident occurred. Jones testified the rig cannot negotiate the circle in the right lane without having its left wheels riding the center line. The police officer stated most trailers on these rigs cross over the center line into the left lane.

Under these circumstances, plaintiff driver was obliged to observe traffic in the right lane and to ascertain she could safely pass before attempting to do so. Not only was she unable to establish the point of impact but also she failed to prove her attempt to pass was begun when it was safe to do so. Her failure to see the rig on this hazardous stretch of highway establishes her contributory negligence.

Plaintiffs argue the physical evidence establishes her freedom from fault because it proves the wheels of the tanker drifted into the passing lane after Mrs. Delgrandile began to overtake it. The investigating officer testified the automobile laid down 5 feet of skid marks within the left lane, 2 feet from the center line. It is argued this proves the truck drifted into plaintiff driver’s lane; however, this theory is discredited by the police officer’s statement that the point of impact could not be determined. He said skid marks in a sideswipé accident establish nothing. They were obviously made after impact since she did not see the truck.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.

REDMANN, J., dissents with written reasons.

REDMANN, Judge

(dissenting).

There are two uncontradicted physical circumstances which together require reversal.

First, the forward-folding damage to plaintiffs’ door shows that, at least during part of the collision-time, defendants’ truck at five mph was moving forward faster than was plaintiffs’ car. Second, the presence of plaintiffs’ five-foot skid marks two feet within plaintiffs’ lane shows that plaintiffs’ car’s strong deceleration (from a speed greater than ten mph) occurred well within plaintiffs’ lane.

The trial judge reasoned that the forward-folding damage could as easily have occurred in defendants’ lane as in plaintiffs’, and that plaintiffs’ skid marks in plaintiffs’ lane could have occurred after “the truck pushed the [car] back into the left lane.”

This reasoning is correct in concluding that the truck “pushed” the car (to make forward-folding damage). But it is incorrect in failing to recognize that the truck, while making forward-folding damage, had to be moving faster than the car. Because the truck was only going about five mph, the car would have been going the same speed or slower when "pushed” back into its own lane where it left five feet of skid marks: but it is not possible for a car going only five mph to produce five feet of skid marks. (See Blashfield, Cyclopedia of Automobile Law and Practice, § 6237, which gives four and a half feet as the braking distance to stop at ten mph.) Thus the trial judge’s hypothesis must be rejected.

It is physically possible that plaintiff driver should first have made the skid marks in her own lane (thus reducing her speed from about 20 to less than five mph), and then, at her reduced speed, have let up on her brakes and crossed into defendants’ lane, where the trailer-truck’s rear wheels and bumper could have produced forward-folding damage to the car. But this physically possible combination is not a reasonable supposition: it is unreasonable to suppose that the driver would have skidding-braked to a near-stop in a safe position and then crept over into the side of a moving truck-trailer. This supposition must be rejected as less probable than not; see Boudreaux v. American Ins. Co., 1972, 262 La. 721, 264 So.2d 621.

The probable explanation is that, as the trailer-truck first entered the traffic circle in the right lane, turning to its right, the rear of the trailer remained more to the right of the tractor-cab and thus to the right of the line dividing the circle lanes. Then, as the tractor-cab got into the circle, it had to turn left to follow the circle, and the trailer’s relative position shifted towards the left of the cab. Meanwhile the car, too, was entering the circle in the left lane (at a higher speed), and began to overtake the trailer just as the trailer was making its shift to the left (following the. cab’s turn to the left). Because collision did occur while the car was traveling slower than the truck (as the damage proves), and because the car’s slow-down occurred two feet within its own lane, the probable explanation is that the trailer’s leftward drift brought it over the dividing line into plaintiff’s lane, where collision occurred. The truck driver’s own testimony was that, even with the tractor-cab’s front wheel “jamming” the outer curbing of the circle, “my trailer wheel is still . . . hanging over the [center] line. ... It had to be.” The driver modified this to assert that the rear part of the trailer “is right on that line and never goes over.”

In my opinion the location of the skid marks and the damage showing the truck’s speed exceeded that of the car, taken together with the other factual circumstances, affirm the plaintiff driver’s testimony that collision occurred in her lane.

The truck driver’s testimony proves that he was well aware that the trailer tended to encroach upon the left lane. His failure to keep the truck within his lane constituted fault within C.C. art. 2315 (or want of skill, art. 2316) which damaged plaintiffs.

Plaintiff driver’s failure to observe the truck was not contributory negligence. She was entering a circle at which traffic could lawfully approach only from her left and she therefore need not have looked to her right. Even had she looked to the right and seen the truck, it would not have been unreasonable - for her to assume that the truck would stay within its own lane. We should therefore conclude that no fault on her part contributed to the collision. 
      
      . The rig, consisting of tractor and a 6,000-gallon-tank trailer, measured 40 feet in overall length and had a cargo weight of 73,000 pounds.
     