
    123 So.2d 87
    Ernest THOMAS et al. v. Billy G. BARNETT et al.
    No. 45014.
    June 29, 1960.
    Rehearing Denied Oct. 5, 1960.
    
      Coon & Coon, Monroe, for plaintiffs-appellants.
    Davenport & Farr, Monroe, for defendants-appellees.
   HAMLIN, Justice.

Acting under our supervisory jurisdiction (Article VII, Sec. 11, Louisiana Constitution of 1921, LSA), we granted certiorari to the Court of Appeal, Second Circuit, in order that we might review its judgment affirming a judgment of the trial court rejecting plaintiffs’ demands for personal and property damages.

Plaintiffs are Ernest Thomas and his employer’s compensation insurer, Liberty Mutual Insurance Company. Defendants are Billy G. Barnett, his employer, Murphy T, Dreher (doing business as Dreher Construction Company), and Dreher’s insurer, Globe Indemnity Company.

This suit is an outgrowth of a collision between an empty gravel truck being driven by Barnett and a pick-up truck being driven by Thomas on U. S. Highway 165 at Gabon, Louisiana, on August 9, 1957, at about 4:00 P. M.

Barnett, who had dumped a load of gravel and was returning to the gravel pit, entered Highway 165 from a gravel road to its east, about 387' feet from the point of collision. His intention was to drive south down the highway a short distance and then turn left off the highway and proceed across the Missouri-Pacific Railroad tracks (running parallel with the highway) to a drag line being used to unload gravel cars and load trucks. Travelling south on Highway 165 and north of defendant Barnett when he entered the highway were two pick-up trucks, the first being driven by plaintiff Thomas and the second by a fellow-employee, Edward Monson. Barnett safely negotiated the turn into the highway; Thomas and Monson (approximately 90 feet behind the Barnett truck) decreased their speed to permit Barnett safe entrance. Thomas then increased his speed (to no more than thirty-five miles per hour), and when he was approximately two truck lengths behind Barnett he cut to his left and attempted to pass Barnett’s truck. At the same time, Barnett cut a short distance to the right and then turned to the left on his way to the drag line. An impact took place between the Thomas truck and the Barnett truck, after which the Thomas truck veered into a concrete sign on the east side of the highway.

As a result of the collision, Thomas suffered severe personal injuries and damage to his truck. In his petition for damages, he alleged that Barnett was negligent:

“(1) In failing to keep a proper lookout;
“(2) In making a left turn without any warning whatsoever;
“(3) In making a left turn when same could not be done in safety and when the way was not clear of approaching traffic and especially that of plaintiff’s truck;
“(4) In failing to accord to plaintiff Thomas the right of way granted him by law and common prudence;
“(5) In generally failing to exercise that degree of care required by the rules of the road and common prudence ;
“(6) In making a left turn into the side or path of Thomas’ vehicle in such a manner that it was impossible for him to avoid the subsequent collision.”

Defendants denied liability, and alternatively pleaded contributory negligence.

The trial court sustained the plea of contributory negligence, finding that the direct cause of the accident was the negligence of both drivers. It stated:

“The Court feels that the driver of the gravel truck had as much right to believe that the plaintiff would not make a sudden sharp turn into the left lane from immediately behind the gravel truck, as the plaintiff had a right to believe that the defendant was not going to make a left turn with the gravel truck. The plaintiff may have acted with the best of intentions but that does not keep him from being grossly negligent. Very few drivers involved in an accident act with anything but good intentions. Regardless of their intentions they show bad judgment and an utter disregard of the rights of others when cars are operated as the gravel truck and the truck of the plaintiff were operated as disclosed by this record.”

The Court of Appeal,. Second Circuit,, found that plaintiffs failed to establish the negligence of Barnett as the sole and proximate cause of the collision. It found that both drivers were guilty of negligence;, and, that Thomas had a mental fixation that Barnett would turn to the right or west since he cut over to the right before attempting to negotiate the left turn.

Relators contend that the rule of law with respect to contributory negligence applied by the Court of Appeal, Second Circuit, is contrary to that applied by the Court of Appeal, First Circuit, and the Court of' Appeal, Parish of Orleans; that the Court of Appeal did not find Thomas guilty of any acts of omission or commission but found that his thoughts contributed to the cause of the accident; that the Court of Appeal did not apply a positive enactment of the statutory law of Louisiana, incorporated in the Revised Statutes as LSA-R.S. 32:235; and, that the Court of Appeal did! not follow the law as already announced in the case of Washington Fire & Marine Ins. Co. v. Firemen’s Ins. Co., 232 La. 379, 94 So.2d 295.

We agree with our learned brothers of the Court of Appeal that the evidence adduced herein is in hopeless conflict.

Plaintiff Thomas’s testimony is to the effect that he blew his horn before attempting to pass the Barnett truck; and, that even though he was directly behind the Barnett truck, Barnett was in his right •or west lane of traffic and gave no indication of his intention of turning left. His testimony is supported by that of his coworker, Edward Monson, whose view of the highway was undoubtedly impaired by the Thomas truck.

Defendant Barnett testified that when he .approached the intersection of U. S. Highway 165, he saw the two pick-up trucks north of him. After negotiating the turn from the gravel road into the highway, he observed the Thomas truck from his mirror and presumed that he had ample space to make a left turn. He said that he signaled his intention to turn by holding his left arm out of the cab of his truck and by operating his directional blinkers. He stated that after the accident he checked his blinkers at the request of a State Trooper and they were still on. He emphatically denied seeing the Thomas truck in the passing lane; he also denied hearing the sound of the horn. He said that the first time he saw the truck was when it bounced off of his truck after they had collided.

LSA-R.S. 32.233 provides:

“A. The driver of a vehicle' overtaking another vehicle proceeding in the same direction shall pass at a safe distance to the left thereof and shall not again drive to the right side of the highway until safely clear of such overtaken vehicle.
“B. The' driver of an overtaking vehicle shall give audible and sufficient warning of his intention before overtaking, passing or attempting to pass a vehicle proceeding in the same direction.
“C. The driver of a vehicle shall not drive to the left side of the center line of the highway in overtaking and passing another vehicle traveling in the same direction, unless such left side is clearly visible and free from oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in perfect safety. Whenever an accident occurs under such circumstances, the responsibility therefor shall rest prima facie upon the driver of the vehicle doing the overtaking or passing.
* s{c ‡ % Jji
“E. The driver of a vehicle shall not, under any circumstances, overtake or pass another vehicle proceeding in the same direction at any railroad grade crossing or any intersection of the highway, unless permitted or instructed to do so by a duly authorized traffic or police officer.
“F. The driver of a vehicle who has been given adequate warnings by an overtaking and passing vehicle, shall promptly give way to his right in favor of such overtaking and passing vehicle and shall not increase the speed of his vehicle until it has been completely overtaken and passed. Nothing herein shall mitigate against the provisions for prima facie responsibility in Subsection C. * * * ”

LSA-R.S. 32:234 recites:

“A. The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard to the speed of such vehicle and the traffic upon and condition of the highway.
“B. The driver of a motor truck, when traveling upon a highway outside of a business or residential district, shall not follow another motor truck within four hundred feet, but this shall not be construed to prevent one motor truck overtaking and passing another.”

LSA-R.S. 32:235 provides:

“A. The driver of any vehicle on the highways of this state shall ascertain, before turning around upon any highway, that there is no traffic, vehicular or pedestrian, approaching from either direction which will be unduly delayed and shall yield right-of-way to such approaching traffic and shall not attempt to make a turn unless the way is clear.
“B. * * * and when intending to turn to the left shall approach such intersection in the lane for traffic to the right of and nearest the center line of the highway and in turning shall pass beyond the center of the intersection, passing as closely as practicable to the right thereof before turning to the left. * * * ”

LSA-R.S: 32:236 states:

“A. The driver of any vehicle upon a highway of this state, before starting, stopping or turning from a direct line shall first see that such movement can be made in safety, * * *; and, whenever the operation of any other vehicle may be affected by such movement, shall give a signal as required in this Section, plainly visible to the driver of such other vehicle, of the intention to make such movement. * * * ”

A consideration of the testimony and the physical facts surrounding the accident in the light of the above rules of the highway impels us to conclude that plaintiff Thomas was negligent in not insuring his safe passage of defendant Barnett’s truck. Defendant Barnett was negligent in not determining that his way was clear to make a left turn, one of the most dangerous on a public highway.

The fact that the Courts of Appeal of this State might have divided views with respect to the law to be applied to contributory negligence is of no moment in this matter, which is strictly factual. The case of Washington Fire & Marine Insurance Co. v. Firemen’s Insurance Co., 232 La. 379, 94 So.2d 295, is not apposite. It is true that therein we held that before making a left turn a driver must ascertain that he can do so safely and is negligent in not so doing, but, we were not considering such negligence as associated with the negligence of a passing driver. Herein, we have found defendant Barnett negligent in not ascertaining that he could safely make a left turn, but we have likewise found plaintiff Thomas negligent in not assuring himself that he could safely pass Barnett’s truck.

For the reasons assigned, the judgment of the Court of Appeal, Second Circuit, is affirmed at relators’ costs.

McCALEB, Justice

(dissenting).

I cannot agree that Thomas was guilty of any negligence which was a contributing cause to the accident. Indeed, after reading the reasons for judgment of the district court, the opinion of the Court of Appeal (see 116 So.2d 330) and the majority opinion herein, I am constrained to the view that a new theory of the law of contributory negligence has been injected into our jurisprudence.

The district judge, the Court of Appeal and this Court all find that Barnett was guilty of primary negligence in making a left-hand turn over the passing lane of the highway at a time when he knew or should have known that the Thomas truck had overtaken and was actually passing him. But all three courts have decided that Thomas was guilty of contributory negligence ascribing different reasons therefor.

The district judge said that Thomas was imprudent because he was driving too close to the rear of the Barnett truck at the time he cut to the left and attempted to pass it. He observed that this was gross negligence because it is common knowledge “ * * * that a large percentage of headon collisions are caused by drivers cutting out from immediately behind, motor vehicles they are trailing, thereby being unable to see any oncoming traffic because their view, is obscured by the motor vehicle they are trailing”.

There might have been some substance in the trial judge’s reasoning if Thomas had become engaged in an accident with an oncoming vehicle. But I wonder how Thomas’ action contributed to the accident in this case. It is to be borne in mind that the term “contributory negligence” means what it says—that is, the negligence must be a contributing cause of the accident. Therefore, whether Thomas was travelling closely behind the Barnett truck prior to driving into the passing lane or had gradually angled over to the passing lane when he was further away from the Barnett truck could have absolutely no bearing on Barnett’s movement in making an illegal left turn.

The gravamen of the Court of Appeal’ opinion, that Thomas was contributorily negligent, is based on two theories. First it is said “ * * * that plaintiffs have failed to establish the negligence of Barnett as the sole and proximate cause of the collision”. ’ This is, indeed, a novel idea because it apparently places on Thomas the burden of establishing that he was. not guilty of contributory negligence. This, of course, is not the law for it is hornbook that contributory negligence is a defense which must be specially pleaded and that the defendant carries the burden of proving such negligence.

Secondly, the Court of Appeal opinion concludes that Thomas was contributorily negligent “ * * * in attempting an abrupt passing movement, solely influenced by his unjustified and erroneous assumption of the course that would be taken by the preceding vehicle”. This erroneous assumption on the part of Thomas is that he thought that Barnett was going to make a right turn into a gravel road on the west side of the highway and was evidently surprised when Barnett turned to the left.

This, too, is a unique theory because it convicts Thomas of negligence not really because of what he did or failed to do but merely because Thomas erroneously thought that the Barnett truck would turn right. In the absence of any believable evidence that Barnett signalled that he intended to make a left turn, the impression of Thomas, even if unjustified, could not be regarded as negligence as he surely was not aware, and had no reason to believe, that-the Barnett truck would make a left turn.

The opinion of the majority of this Court, holding Thomas to be contributorily negligent, is even more difficult for me to understand. After considering the testimony and citing certain sections of the Highway Regulatory Act, which have been incorporated in the Revised Statutes, the majority opinion finds that Barnett was negligent in not ascertaining that he could safely make a left turn and then concludes that Thomas was also at fault “ * * * in not assuring himself that he could safely pass Barnett’s truck”. Literally, this can only mean that in order to be absolved of negligence in any case, the motorist overtaking and passing another vehicle must be absolutely certain that he can do so and that, if the defendant negligently pulls to his left and strikes him during the passing operation, there can be no recovery at all. It is hard for me to believe that the Court means what it says but, since there is nothing contained in the opinion which otherwise points to an act or dereliction on the part of Thomas which was a factor having causal connection with or contributing to the accident, I must assume that the Court is laying down as a rule of law that a passing motorist is to be adjudged at fault if he becomes engaged in an accident with the vehicle he has overtaken, irrespective of the circumstances, because he did not insure “his safe passage” of the other vehicle.

I respectfully dissent.

SIMON, J., concurs. 
      
      
        . 116 So.2d 330.
     
      
      . A hard-surfaced highway, flat in terrain, running north and south.
     
      
      . “The stories of the principal actors involved in the collision, Thomas and Barnett, as to the facts directly bearing upon the occurrence are in irreconcilable conflict. Plaintiff, Thomas, contended and testified that he began a passing maneuver of the Barnett truck when he was still some 200 feet distance therefrom, at which point he pulled into his left lane of the highway, sounded his horn, and as he •came almost abreast of the Barnett truck the driver thereof turned sharply to the left immediately in his path of travel, without giving any signal of his intention, thus causing the collision. On the other hand, and directly in contradiction of plaintiff’s version, the defendant, Barnett, testified that he observed the Thomas truck following his vehicle as they both proceeded on their southbound course in the right-hand or west lane of the highway; that he signaled his intention of making a left turn by using the directional blinker lights on the truck and by extending his left arm from the cab thereof, despite which signals Thomas pulled his following truck sharply into the left hand lane almost immediately before plaintiff began a sharp left-hand turn. Both Thomas and Monson denied’ observing any signals indicating a proposed left-hand turn by the Barnett truck. * * * ” [116 So.2d 331.]
     