
    Irvin N. BREAUX v. Milton VILLARUBIA et al. Charles L. BROADWAY, Jr. v. Robert B. KILEY et al.
    Nos. 5144, 5145.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 1972.
    Rehearing Denied Dec. 19, 1972.
    
      Robert J. Pitard, New Orleans, for Milton Villarubia, Robert B. Kilby, Manchester Ins. and Indemnity Co. and NOLA Cabs, Inc., defendants, third party plaintiffs, third party defendants-appellants.
    Jackson & Hess, Leonard A. Washofsky, New Orleans, for Charles L. Broadway, Jr., defendant-appellee, No. 5144, plaintiff-appellee, No. 5145.
    Bernard, Micholet & Cassisa, Andrew M. Weir, for Metairie, for Irvin N. Breaux, plaintiff-appellee.
    Before LEMMON, GULOTTA and BOUTALL, JJ.
   GULOTTA, Judge.

These consolidated matters are on appeal from a judgment awarding damages for personal injuries sustained as a result of an automobile collision between a taxicab and a private automobile.

Suit was filed by Irvin N. Breaux, a guest passenger, against his host driver, Charles L. Broadway, Jr.; Milton Villaru-bia, owner of the taxicab; Robert Kilby , operator of the taxicab; Manchester Insurance and Indemnity Company, liability insurer of the cab; and NOLA Cabs, Inc., alleged to be a surety or liability insurer of the owner and operator of the cab. Third party pleadings were filed by Kiley, Villa-rubia, Manchester, and NOLA against Broadway seeking contributions and by Broadway against the other defendants seeking indemnity and/or contribution. Further, in a separate proceeding, Broadway filed suit against Kiley, Villarubia, NOLA and Manchester.

In the Breaux matter, judgment was rendered in favor of plaintiff in the sum of $1,824.83 and against Villarubia, Kiley, and Manchester and dismissed against Broadway and NOLA. In the Broadway suit, judgment was rendered in his favor in the sum of $704.22 and against the same defendants and dismissed as against NOLA.

All defendants cast in judgment have suspensively appealed. There is no dispute on quantum but only on liability.

In this connection, the facts are that Breaux was a passenger in an automobile driven by Broadway in the middle lane on Basin Street in the direction of uptown in the City of New Orleans. Breaux was seated in the left rear. While proceeding across the intersection of Canal and Basin Streets, the left rear of the Broadway car was struck by the front end of a taxicab driven by Kiley. Kiley was driving in the middle lane of Canal Street in the direction of the Lake. A semaphore light controls traffic at this intersection. The question in this case is which driver had the green light.

The trial judge concluded that Kiley’s negligence in crossing on a red light caused the accident and injury.

As in cases of this kind, both drivers testified they had the green light in their favor. Breaux testified further that Broadway crossed on a green light. However, additional evidence was obtained from persons other than occupants of the two vehicles. William H. Bragg, III, testified he was driving a gasoline truck on the opposite side of Canal Street in the direction of the River. Lyle A. Salez, Jr., owner of the truck, was an occupant in the vehicle. Both said that the light was green for traffic traveling on Canal Street and that Kiley proceeded across Basin Street on a green light. The trial judge discounted the testimony of Bragg, observing in his oral reasons for judgment, that Bragg testified he saw the light change from red to yellow to green. He took judicial cognizance that in the City of New Orleans a yellow light only follows a green one and does not follow a red light in sequence. Therefore, according to the trial judge’s reasoning, because Bragg saw a yellow light before he and Kiley entered the intersection, the light was red for traffic traveling on Canal Street and Kiley crossed on a red light. The trial judge was further impressed by Kiley’s failure to file suit or to assert a claim for his damages. Apparently, he additionally relied on the testimony of Breaux and Broadway in concluding that Broadway crossed on a green light.

This matter resolves itself and is a question of credibility and weight of the evidence. Deeply imbedded in our jurisprudence is the rule that where the trial judge has seen, heard, and observed the witnesses, his judgment on a question of fact will not be disturbed unless manifestly erroneous. Many things are discernible to the trial judge not perceptible from the written record. If, from a review of the evidence, (because of a conflict in testimony) we might question the determination of fact made by the trial judge or the reasons assigned, but there is substantial evidence to support his findings, we cannot find manifest error. In the case of Ebert v. Macaluso, 248 So.2d 355, at page 356, (La.App. 4th Cir. 1971), we said:

“ * * * While the Court of Appeal is duty bound to consider both law and fact, it should accord such weight to factual findings of the lower court as they deserve and thus, avoid retrying cases from the record, particularly if the outcome was influenced by the credibility of witnesses appearing before the trial judge who has the duty to evaluate their testimony. LSA-Const. art. 7 § 29; Reynolds v. Hartford Accident & Indemnity Company, 228 So.2d 76 (La.App. 2nd Cir., 1969); writ refused 255 La. 148, 229 So.2d 732 (1970).”

Considering the entire record and guided by the above, we find no manifest error. Judgment affirmed.

Affirmed.

LEMMON, J., dissents with written reasons.

LEMMON, Judge

(dissenting).

The factual conclusions of a trial judge, especially when based on an evaluation of the credibility of witnesses, are entitled to great weight and should not be disturbed on appellate review in the absence of manifest error. This principle, pronounced hundreds of times by the appellate courts, does not mean that we must always approve the conclusions of the trial judge on purely factual matters.

In this case the trial judge’s factual determination that Broadway had the green light was based on declared considerations which were erroneous as a matter of law. At' the end of the trial the judge stated:

“(T)he Court has to look for other facts and circumstances to determine who is telling the truth and who is not.
“One of the circumstances in this case was provided by a witness named Bragg who says the light was yellow when he was approaching it right before the accident happened. The Court has to conclude from that statement that after yellow the light turned red and therefore the light was red at the time Mr. Bragg and his truck approached the crossing of Basin Street.
“Secondly, the Court has to conclude that the cab driver knew he had crossed on a red light because he even didn’t make a claim or sue for the damages, or he didn’t even reconvene for the damages to the taxicab after he had been sued.
“The Court is of the opinion that the sole cause of this accident or damage was the negligence of Mr. Kiley in driving his taxicab across Basin Street at Canal at a time and place when the sem-aphone light was red.”

The trial judge committed manifest error in concluding “that the cab driver knew he had crossed on a red light because he didn’t even make a claim.” Whether a person presented a claim in accident litigation should play no part in the determination of liability for that accident.

As to the witness Bragg’s momentary confusion on direct examination as to the color sequence of the traffic signal, that witness on cross-examination testified as follows:

“Q And as you approached Basin Street you say the light was red?
“A Right.
“Q And you saw a yellow light come on then?
“A Well, I don’t know if it’s yellow or what, but I know the light was red. I put it in second gear and the light turned green and I took off again, and that’s exactly the way it happened.”

Again, I believe that the trial judge committed error by concluding that the witness was incorrect in his positive assertion that the light was green for Canal Street traffic simply because of his innocuous statement about a yellow light (which he admitted may have been incorrect).

Because of the two erroneous bases stated as the foundation of the trial judge’s factual conclusion, I believe the judgment of the trial court should be set aside and the case should either be retried or be decided by this court on the record without any weight assigned under the manifest error rule. 
      
      . Properly spelled “Kiley”.
     
      
      . We do not agree that this reason is valid in this case. The taxicab was not owned by Kiley. Moreover, he sustained little or no injuries. His testimony in this respect was, “I had my knee jammed up underneath the dashboard”.
     
      
      . Holmes Company v. Foret, 229 La. 360, 86 So.2d 66 (1966) ; Sunseri v. Sunseri, 256 So.2d 673 (La.App. 4th Cir. 1972) ; Crane Supply Company v. Drake & Planche, Inc., 255 So.2d 188 (La.App. 4th Cir. 1971).
     