
    Florence WALTERS et al., Plaintiffs-Appellees, v. SEVEN UP BOTTLING COMPANY OF ALEXANDRIA, Inc., et al., Defendants-Appellants.
    No. 2273.
    Court of Appeal of Louisiana. Third Circuit.
    March 27, 1968.
    On Rehearing July 2, 1968.
    Rehearing Denied July 29, 1968.
    
      Gold, Hall & Skye, by Leo Gold, Alexandria, for defendants-appellants.
    J. Edward Hines, Jr., Provosty, Sadler & Scott, by Nauman S. Scott, Alexandria, for plaintiffs-appellees.
    Before FRUGÉ, SAVOY and HOOD, JJ-
   SAVOY, Judge.

This case was consolidated with the case of Ruby Hayes et al. v. Seven Up Bottling Company of Alexandria, Inc. et al., La.App., 212 So.2d 450, for the purposes of trial, since both cases arise from the same traffic accident.

This action arose out of a collision between an automobile driven by Mrs. Florence, Walters and a Seven Up Bottling Company truck driven by Mr. Foot. After a trial on the merits the trial judge rendered judgment against defendant and its insurer, Millers Mutual Fire Insurance Company of Texas, in solido, in favor of Mrs. Florence Walters in the sum of $1,644.00 for her pain and suffering; and in favor of her husband, Craig Lee Walters, in the sum of $1,325.00 as special damages to him. The trial judge also rendered judgment in favor of Mrs. Ruby Hayes in the sum of $250.00 for her personal injuries against defendants; and in favor of her husband, Curtis Hayes, in the sum of $10.00, representing medical expenses to the community as a result of her injury.

From these judgments, defendants have devolutively appealed. No contention is made that the awards of the trial court are excessive.

Florence Walters’ version of the accident was that she had taken her friend, Ruby B. Hayes, with her to a grocery store on Main Street in the City of Alexandria. Upon leaving the grocery store, Mrs. Walters drove to the exit on the north end of the parking lot, which exit faces Main Street. Main Street at this point is a one-way street with two travel lanes. All traffic on Main Street must proceed in a northerly direction. The grocery store was on the left or west side of Main Street.

Mrs. Walters testified that she drove to the intersection of the grocery store’s parking lot and Main Street and waited for the way to clear so that she could turn left (north) onto Main Street.

Mrs. Walters observed traffic proceeding north in both lanes of Main Street when she reached the parking lot exit. She waited for traffic in the left lane of Main Street to pass before entering that lane. She stated that there was some traffic in the right lane of Main Street, and that she saw the Seven Up Bottling Company truck about one-half to three-quarters of a block south of her also in the right lane. After the left lane of Main Street was clear, Mrs. Walters testified she drove her car from the parking lot and headed north in the left lane of Main Street to the corner of Main and Broadway Streets — which distance was about forty-six feet from' the exit of the parking lot out of which she drove — intending to turn left into Broadway Street. (Broadway Street is a two-way street which forms a “T” intersection from the west with Main Street.)

Mrs. Walters testified that from the time did the Walters car leave the left lane left turn indicator on and her hand outstretched, signaling a left turn as she proceeded to the Broadway intersection. At that point she withdrew her arm and turned into Broadway Street, and, upon getting her car completely into Broadway Street, her car was struck on the door on the driver’s side by the Seven Up Bottling Company truck, shoving her car beyond the curb of Broadway Street onto a lot.

At the trial Mrs. Walters and her guest passenger, Mrs. Hayes, testified that at no time did the Walters car leave the left lane of Main Street. Mrs. Hayes also testified that Mrs. Walters did not look to the rear immediately before attempting to turn left.

The truck driver of the Seven Up Bottling Company truck testified that he was proceeding north along Main Street in the left lane at a speed of 35 miles per hour, which was the speed limit there. He stated he saw the Walters’ vehicle pull out from the parking lot when he was some distance from that point. He testified, however, that Mrs. Walters drove her car across the left lane and into the right lane of Main Street before beginning her left turn into Broadway, and that she then turned sharply to her left directly in front of his truck when he was so close to her that he could avoid an accident.

The physical facts reveal that the automobile driven by Mrs. Walters was struck in the center of its left side by the right front fender of the truck driven by Foot. This indicates that the accident occurred in the left lane of Main Street, and not on Broadway as contended by counsel for plaintiffs, and that the Walters car actually had turned to the left from the center lane of traffic in front of the truck.

The investigating officer testified it was his opinion that the point of impact occurred on Main Street, near the middle of the intersection with Broadway.

The evidence reveals that the Seven Up Bottling Company truck left 54 feet of skid marks, all of which were in the left lane of Main Street. These marks curved slightly to the left in the direction of Broadway. This indicates that the truck had remained in the left lane of traffic of Main Street, and that the truck driver veered slightly to his left in order to avoid striking the Walters vehicle.

It is our opinion that Mrs. Walters did not exercise a proper lookout. Mrs. Hayes, a guest passenger, testified that Mrs. Walters never did look to the rear immediately before attempting to turn left. If she had looked to the rear immediately before attempting to turn left, she would have known that the Foot truck was in the process of rapidly overtaking her and that a left turn at the moment would cause an accident. Her failure to look to the reaf immediately before turning was negligence which was the cause in fact of the accident.

In the recent case of McCann v. Mercer (La.App., 3 Cir., 1966), 191 So.2d 150, this Court stated:

“ ‘A left-turning driver must ascertain in advance that the turn can be made without endangering normal overtaking traffic; and in this respect, he must not only make adequate signal of his left-turn intention hut also adequate observation to his rear to ascertain that the turn can be executed safely.’ * * (Citations omitted.)

For a further discussion of the subject matter, see Bankston v. Bueche (La.App., 1 Cir., 1968), 206 So.2d 532.

We likewise find no negligence on the part of the truck driver Foot. Under the circumstances of this case, we are of the opinion that defendant truck driver Foot could not have discovered Mrs. Walters’ dangerous position in time to avoid the accident. Therefore, we find no negligence on his part.

For the reasons assigned the judgment of the district court is reversed, and judgment is hereby rendered in favor of defendants, Seven Up Bottling Company of Alexandria, Inc. and Millers Mutual Fire Insurance Company of Texas, and against plaintiffs, Craig Lee Walters and Florence Walters, rejecting their demands and dismissing their suit at their costs. Ap-pellees to pay the costs of this proceeding.

Reversed.

Frugé, J., dissents with written reasons assigned. For dissenting opinion see La.App., 212 So.2d 451.

On Rehearing.

En Banc.

TATE, Judge.

Mrs. Walters and her husband sue the Seven-Up Bottling Company and its liability insurer for damages sustained when a Seven-Up truck crashed into the Walters automobile as or after the plaintiff wife turned left from a main thoroughfare. On our original hearing we reversed a trial court judgment in favor of plaintiffs, when we decided that the Walters vehicle was struck while still on the main thoroughfare and that this denoted a negligent left turn on the part of its driver, Mrs. Walters.

However, upon our reconsideration of the entire record on rehearing, we have concluded that the preponderance of the evidence supports the trial court’s finding that the sole proximate cause of the accident was the Seven-Up truckdriver’s negligence in failing to perceive and to avoid the forward Walters vehicle as it turned left.

As the opinions of our original hearing show, prior to the accident both Mrs. Walters and the defendants’ Seven-Up truck were proceeding northward on Main Street of Alexandria. This is a large three-laned principal thoroughfare, reserved for northbound traffic only at the place of the accident.

Mrs. Walters had entered Main Street from a supermarket parking lot on the west side of Main Street, just 46 feet below the T-intersection where Broadway from the west ended at Main Street. She intended to and did turn left (west) at this intersection, with the north lane on Broadway into which she turned being 66 feet north of the supermarket exit.

She testified that she had entered Main Street and had proceeded this 66 feet down it in the left (west) lane to make this left turn, with her left-turn signal blinking. She is corroborated in this testimony by the passenger in her car. These ladies testified that the Walters vehicle was struck by the Seven-Up truck after it had turned into Broadway. In essentially accepting their version of the accident, the trial court expressly commented that it was favorably impressed as to the accuracy of the testimony of these witnesses.

However, the Seven-Up driver testified that the accident occurred in another manner. He states that Mrs. Walters had driven across Main Street into a right lane thereof, and then had (just as he drew abreast) turned left in his immediate path. This version, of course, would explain the truckdriver’s failure to have maintained such control of his more fastly approaching truck as to avoid striking the slow-moving Walters vehicle — which, according to the testimony accepted by the trial court, was instead in the left lane ahead of him. (As the trial court noted, there is no contention that Mrs. Walters entered Main Street when the Seven-Up truck was too close to her.)

In overturning this factual finding of the trial court, which was essentially based on a credibility evaluation, the persuasiveness of counsel for appellant had convinced us on original hearing that the circumstance that Mrs. Walters’ vehicle was struck in the center of its left side indicated that the accident occurred in the left lane of Main Street and also indicated that the Walters automobile actually had turned to the left from the center lane of traffic in front of the Seven-Up truck.

Our reconsideration of all the evidence in the record indicates that we were in error. In the first place, the photographs taken immediately after the accident and the testimony of the newspaper photographer who took them (whose credibility the trial court expressly commented upon favorably) show the skidmarks of the truck as veering left from Main Street into Broadway, with the debris from the impact being situated there. While the Walters car was not as far down Broadway as the ladies testified, nevertheless, as the trial court found, “the evidence * * * amply establishes that the point of impact was on Broadway [and] * * * it must be concluded that less than half of the Chevrolet was in Main when the impact occurred.” Tr. 43-44.

In the second place, the mere fact the Walters car was hit in its center cannot prove where the impact occurred or where the vehicle was prior to its left turn. These circumstances depend upon where both vehicles were immediately prior to and at the time of the impact. This can be established by the testimony of the witnesses as to the location of the vehicles and the effects of the impact. Both of these factual issues were, on the basis of conflicting testimony, resolved in the plaintiff’s favor.

On rehearing, counsel for the appellants again made a very persuasive argument. He relies upon the investigating police officer’s opinion that the impact occurred on Main Street. Counsel also interprets a photograph as indicating that the truck skid-marks ended in the left lane of Main Street, thus showing the impact as being on Main Street, which is allegedly more consistent with his truckdriver’s version of the accident than with that of all the other witnesses.

However, even if the photograph were subject to counsel’s interpretation, the police officer noted that the skidmarks ended at the back wheels of the truck, Tr. 155; thus, the forward part of the truck protruded past where these skidmarks stopped. Further, this officer’s estimate of the point of impact was arrived at “by talking to both parties” as well as from his evaluation of the physical evidence, Tr. 152. He admitted that the front end of the Seven-Up truck was in Broadway past the point on Main which he felt was the point of impact, Tr. 155, as well as that the debris of impact well into Broadway which had been noted and pictured by the photographer was there and probably came from the vehicles involved in this accident, Tr. 157. (He hypothesized that this debris had been carried past the point of impact by the momentum of the automobiles, Tr. 158.) The police officer frankly admitted to the “possibility of a variation” of the impact from his hypothesis, Tr. 158. (See trial court’s evaluation of his testimony, Tr. 43.)

Ultimately, thus, the question is whether the trial court committed factual error in its evaluation of the credibility of the witnesses and in its analysis of the factual evidence. We are unable to find the trial court so erred and to substitute for its well-supported finding the rather improbable version of the accident to which the defendants’ driver testified. Under these factual findings, we have no difficulty in affirming judgment in favor of the plaintiffs.

The law imposes a duty on the following motorist to keep his vehicle under control, to observe the forward vehicle and to follow at a safe distance. As a general rule, when a following vehicle collides with the rear of the lead car, the following driver is considered to be at fault. An exception to this general rule of law has been recognized in instances where the driver of the lead vehicle negligently creates a hazard which the following vehicle cannot reasonably avoid. Vander v. New York Fire and Marine Underwriters, Inc., 192 So.2d 635 (La.App. 3d Cir. 1966) and decisions therein cited. See LSA-R.S. 32:81.

Therefore, it is our opinion that Mrs. Walters was not negligent in the manner in which she left the parking lot or in the manner in which she executed her left turn, and further, that the sole proximate cause of this accident was the negligence of Mr. Foot in failing to timely observe the left turn signal of Mrs. Walters and in failing to have his truck under proper control in order to avoid colliding with her vehicle. See Billiot v. Noble Drilling Corp., 236 La. 793, 109 So.2d 96 (1959); Williams v. Bologna Brothers, Inc., 194 So.2d 131 (La.App. 1st Cir. 1967); Evans v. Thorpe, 175 So.2d 418 (La.App. 2d Cir., 1965).

There is no dispute as to quantum.

For the foregoing reasons, we set aside our opinion on original hearing and now, on rehearing, we affirm the judgment of the trial court in favor of the plaintiffs-appel-lees. All costs to be paid by the defendants-appellants.

Affirmed.

SAVOY, J., dissents for the reasons assigned on the original hearing.

HOOD, J., concurs in part and dissents in part and assigns written reasons.

HOOD, Judge

(dissenting).

I concur in that part of the majority opinion, on rehearing, which holds that the driver of the Seven-Up Bottling Company truck was negligent and that Ruby Hayes, the passenger in the Walters car, is entitled to recover. I am unable to agree with that portion of the decision which holds that Mrs. Walters, the driver of the automobile, was free from negligence and that she also may recover from defendants.

A further review of the record convinces me that we erred in holding originally that the driver of the truck was free from negligence. I believe now, as does the majority, that the Seven-Up Bottling Company truck was negligent in endeavoring to overtake and pass the Walters car at an intersection, and in failing to observe the left turn signal given by the driver of that automobile in time to avoid an accident.

I remain firmly convinced, however, that Mrs. Walters, the driver of the car, was grossly negligent in making a left turn directly in the path of the overtaking truck, without first ascertaining that such a maneuver could be made safely. In my opinion her negligence in that respect was a proximate and contributing cause of the accident which bars her from recovery.

The majority has concluded that immediately before the collision occurred the truck was directly behind the car in the same lane of traffic, that both vehicles were travelling north in the left lane of traffic close to the curb, that the Walters automobile was turned to its left as soon as it reached the intersection, that the truck then veered to its left in an attempt to avoid an accident, and that the truck struck the left side of the automobile broadside, mid-way .between the front and rear doors on the left side of the car. I agree with all of those factual findings except the conclusion that the Walters car remained in the left or west lane of traffic on Main Street from the time it left the parking lot until the left turn was begun. In my opinion it would have been physically impossible for the truck to have struck the left side of the car broadside, about in the center of the automobile, if it had been following in the tracks of the car as found by the majority.

The majority found that “less than half” of the Walters car was on Main Street when the vehicles collided. I think a greater portion of that car was still in Main Street at the time of the impact, but regardless of how much of the automobile had crossed over the west curb line of Máin Street into Broadway, the conclusion is inescapable that Mrs. Walters was in the process of making a left turn when her car was struck, that she was facing in a westerly direction at that time, and that when the collision occurred about the rear one-half of her car was still in Main Street extending almost across the entire width of the left or west lane of traffic on that street. The Walters automobile could not possibly have gotten into that position unless it actually had been travelling in the center lane of traffic on Main Street, rather than in the west lane, immediately before the turn was attempted.

The majority has found that the point of impact was on Broadway. In my opinion the evidence shows clearly that it was on Main Street. I think it is immaterial, however, which of the two differing locations is correct, because they actually are only inches apart, one being slightly on one side of the west curb line of Main Street and the other being slightly on the other side of that curb line. The police officer who investigated the accident testified that the debris, the skid marks, and the location of the vehicles after the accident showed that the point of impact was on Main Street. He also testified that Mrs. Walters, the driver of the automobile, admitted to him shortly after the accident occurred that she had not remained in the left lane of traffic on Main Street before attempting the left turn, but instead that she had driven partially into the right lane. His testimony is that “She said she had driven part of it into the right hand lane of traffic, said she straddled the broken white line.” This admission, made by Mrs. Walters at the scene of the accident, conforms to the testimony of the driver of the truck and to the physical facts. The majority has ignored this admission against interest by Mrs. Walters and has held that she did not drive partially into the right lane of traffic as she had stated to the investigating officer. I think my colleagues erred in failing to consider that important admission made by the plaintiff.

Assuming, however, that the facts are exactly as found by the majority, I think my colleagues have erred as a matter of law in finding Mrs. Walters to be free from negligence. Regardless of the position of the two vehicles before the collision occurred, the fact is inescapable that the accident was caused by the left turn made by the Walters car. Mrs. Walters testified that she did not look in her rear view mirror, and that she made no effort at all to ascertain whether such a turn could be made safely before she proceeded to turn into Broadway. She knew the truck was behind her, because she saw it approaching before she left the parking lot, and yet she did not make any further attempt to observe it from the time she left the parking lot until the collision occurred. She simply turned to her left directly in the path of the overtaking truck, without first looking to see if such a turn could be made safely. The accident would not have occurred if she had not made this sudden left turn.

A motorist who attempts a left turn, or who attempts to turn from a direct line on a public street, must ascertain in advance that the turn can be made safely, and a motorist who fails to make such a determination before turning is negligent. Wesley v. Home Indemnity Company, 245 La. 133, 157 So.2d 467 (1963); McCann v. Mercer, 191 So.2d 150 (La.App. 3d Cir. 1966).

In my opinion Mrs. Walters was grossly negligent in failing to observe the truck which was overtaking and passing her before she attempted to make a left turn. Her negligence in that respect was a proximate cause of the accident and I think it should bar her from recovery.

For these reasons I dissent from that part of the majority opinion which holds that Mrs. Walters was free from negligence and permits her to recover damages.

Rehearing denied.

HOOD and SAVOY, JJ. are of the opinion that a rehearing should be granted. 
      
      . When the plaintiff called this witness under cross-examination, the defendant objected that he was not entitled to do so since this witness was not a party. In sustaining the objection, apparently overlooked was the provision that this witness, an employee of the defendant Seven-Up, could be called under cross-examination under the provisions of LSA-C.C.P. Art. 1634. This provides that a party “or his representative” may be called under cross-examination by an adverse party, and it defines “representative” as including an “employee having supervision or knowledge of the matter in controversy, in whole or in part, whether or not he is in the employ of or connected with the party at the time his testimony is taken.”
     