
    David QUARTERMAN v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 6816.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 15, 1975.
    
      James H. Leveque, III, Carl & Roussel, for David Quarterman, plaintiff-appellant.
    A. R. Christovich, Jr., New Orleans, for New Orleans Public Service, Inc., defendant-appellee.
    Before LEMMON, BOUTALL and MORIAL, JJ.
   BOUTALL, Judge.

Plaintiff was injured when his vehicle struck a utility pole, allegedly caused by a New Orleans Public Service, Inc. bus which swerved into his lane of traffic. Defendant denies that one of its buses was involved and alternatively that plaintiff was guilty of contributory negligence. The trial judge dismissed plaintiff’s suit without giving reasons. This appeal followed.

The evidence clearly preponderates that a New Orleans Public Service, Inc. bus was involved and that it entered plaintiff’s lane of travel. Plaintiff’s testimony in this regard is supported by an independent witness who lived on the corner at the scene of the accident and who observed the entire event. Thus, the trial court’s judgment can only be supported by the plea of contributory negligence.

The record shows that plaintiff was driving his Mustang on North Robertson Street toward the Industrial Canal Bridge on a dry, clear afternoon at 3:00 P.M. In this area North Robertson Street is a one-way, two-laned street, with a broken white line dividing the lanes. No parking is permitted on either side of the street. The New Orleans Public Service Inc. bus entered No. Robertson from Mazant Street, and proceeded slowly along the right lane of No. Robertson one block to the intersection of No. Robertson with France Street, where it made a right turn into France. Meanwhile plaintiff in the left lane of No. Robertson overtook the bus and reached a point alongside the rear third of the bus. When approximately twenty feet or so from the France intersection, the bus veered slightly left for 2 or 3 feet over the center line, ostensibly to give the driver more room to make the turn into France Street. At this point the plaintiff veered to his left, without braking, tried to cut back to his right, but fishtailed, lost control and struck the utility pole near the corner across France Street.

We believe there is sufficient evidence to support a finding of contributory negligence by speeding, loss of control, or both. The independent witness testified plaintiff was exceeding the speed limit of 30 miles per hour and estimated his speed as much as 40 miles per hour, saying that “I know he was coming along.” Additionally, both this witness and plaintiff testified that plaintiff traversed the entire block between Mazant and France Streets in the same time the bus traversed half of that distance.

On the issue of failure to keep his car under control, plaintiff testified that he veered left and remembered nothing else. The investigating policeman reported that plaintiff told him that when the bus came over “he made an adjustment to the left and as he started to veer back to the right he lost control and struck the pole.” The independent witness corroborates this latter version, describing a swerving or fishtailing motion. The evidence further shows that there was sufficient room between bus and curbing for plaintiff to have passed safely.

We concede that the evidence before us poses some rather close questions as to plaintiff’s negligence, such that a trier of fact who entirely believed plaintiff’s testimony could reach a different result. However, our inquiry is directed to whether there is sufficient evidence to support the judgment of the trial court or whether that judgment is manifestly erroneous.

We find no error in the judgment appealed from and, accordingly, we affirm the judgment at plaintiff-appellant’s costs.

Affirmed.

LEMMON, Judge

(dissenting).

I agree that the evidence preponderates in favor of the conclusion that defendant’s bus was a legal cause of the accident. I disagree, however, that defendant has borne the burden of proving that any contributory negligence by plaintiff was a legal cause of the accident.

Plaintiff’s own testimony completely exonerates him from liability. He testified he was driving on Robertson Street in his own lane, within the posted speed limit, and was in the act of passing defendant’s slower moving bus shortly b.efore reaching the intersection with France Street, when suddenly and without warning defendant’s bus invaded his lane by as much as 4 feet. He further stated that, when faced with this sudden emergency, he veered to the left without applying his brakes, fearful that application of brakes would cause skidding into the bus.

The witness, while estimating at trial that plaintiff was driving 30 to 35 miles per hour and in an earlier statement that plaintiff was driving 35 to 40 miles per hour, stated specifically at trial that he did not “notice anything unusual about the speed of this particular vehicle.” He further described plaintiff’s action upon being faced with the sudden emergency as follows :

“* * * He was just pulling up on the bus and when he swerved over, as he swerved over that’s when he turned to his left and brought her back, but he didn’t bring her back fast enough. He hit the telephone pole.”

Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, the standard being that of a reasonable man under like circumstances. Smolinski v. Taulli, La., 276 So.2d 286 (1973). In my opinion plaintiff’s behavior when the bus suddenly and without warning invaded his lane met the standard of that of a reasonable man under like circumstances. He immediately swerved to his left at a point near the southwest corner of Robertson and France Streets. He apparently entered France Street because (according to the witness and to the plaintiff’s version of the accident related to the investigating officer) he pulled back to the right but did not get back fast enough to avoid striking the utility pole on the northwest corner of the intersection.

I would not hold plaintiff at fault for not getting back fast enough. Neither would I hold him at fault for failing to brake (although upon deliberation in hindsight it might have been more prudent to do so) nor in losing control under frantic circumstances. Furthermore, the record does not support a conclusion that, if plaintiff slightly exceeded the speed limit, his excessive speed was a causative factor in the occurrence of the accident.

I would therefore hold that defendant failed to prove any contributory negligence by plaintiff which would constitute a legal cause of the accident.  