
    Harry James SIESS, Jr., Plaintiff-Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 11195.
    Court of Appeal of Louisiana. Second Circuit.
    April 1, 1969.
    Louis Lyons, Bossier City, for plaintiff-appellant.
    Mayer & Smith, Shreveport, for defendants-appellees.
    Before AYRES, BOLIN and DIXON, JJ.
   BOLIN, Judge.

Dr. Harry James Siess, Jr., appeals from a judgment rejecting his demands for damages resulting from a collision between an automobile he was driving and a car operated by Mrs. Mattie W. Manning and insured by St. Paul Fire and Marine Insurance Company.

The issue is whose fault or negligence caused the accident and resulting damages ?

The accident occurred on Interstate Highway #20 in Bossier City. The road was dry and visibility was good. This highway is a multilane thoroughfare with controlled entrances and exists. Immediately preceding the collision there were three automobiles proceeding east in the following order: an International station wagon driven by Mrs. Manning, a Chrysler sedan driven by Mrs. Lilia Spillers and a Dodge station wagon driven by plaintiff. The evidence is conflicting as to distances between the vehicles and which lane each car occupied.

The trial judge gave written reasons for his findings. He concluded Mrs. Manning suddenly maneuvered her International from an inside lane into the lane to her right, occupied by the Spillers Chrysler, in order to make an exit to her right and this sudden changing of traffic lanes by Mrs. Manning caused a collision between the International and the Chrysler. He further found Dr. Siess never observed the two preceding vehicles prior to the collision. The front of his Dodge struck the rear of the International a glancing blow as he passed the scene of the accident. From these facts the trial judge found Mrs. Manning negligent and Dr. Siess contribu-torily negligent in failing to carefully observe traffic ahead of him and in failing to keep his car under proper control in order to avoid the collision.

Plaintiff contends Mrs. Manning changed lanes of travel contrary to law, thereby creating a sudden emergency, and that his actions thereafter were reasonable and prudent under the existing circumstances. Defendants contend the emergency was partially created by plaintiff’s own negligence in failing to observe the traffic to his front. The resolution of this case is factual as the law is not disputed. It is true a driver is forbidden by statute to change lanes on a multilane highway without first ascertaining the maneuver can be made in safety. It is equally true a motorist is not charged with anticipating a sudden or unexpected hazard being created solely by another’s negligence. However, the law requires a motorist to maintain a constant lookout ahead in order to be able to stop or evade any visible obstruction in the road. We agree with the trial judge’s finding that plaintiff was not maintaining proper observation and speed under the circumstances and that this constituted contributory negligence precluding his recovery.

The judgment is affirmed at appellant’s cost.

DIXON, Judge

(dissenting).

The burden of proving contributory negligence is on the defendant.

In his written opinion, the trial judge referred to a statement given by Dr. Siess shortly after the accident “in which he stated that he did not see these vehicles until after they collided and that when he looked up they were together in front of him.” Based on this statement of Dr. Siess, he was found to be guilty of contributory negligence for not observing traffic ahead of him and for not keeping his car under proper control.

The statement referred to by the trial judge follows:

“My name is Dr. J. Siess. I live at 315 Monroe St. Bossier City, La.
“I own a 1961 Dodge Sta Wgn which I was driving on Feb. 10, 1967 at about 11:20 A.M. when an accident occurred on 1-20. I was headed east alone. I was in the center lane of three lanes past the exit point to Hwy. 3. I suddenly saw 2 cars up to my immediate front collide. They came partial into my lane. I swerved and the right rear of my car collided with the left rear International Sta. Wgn. I did not observe the two cars that collided prior to their collision. When I looked up I saw them together.
“These two cars were just to my right front. My first view of them they were together with both of them facing generally south to the right side of the road. The right side of the International was collided with the left side of the Chrysler. The rear of the International came partially in my lane. I swerved hard hut the right rear quarter panel of my Sta Wagon was caught by the left rear of the International protruding into my lane. My knee was hurt. I was alone. The Police investigated. This report is true to the best of my knowledge.”

A fair reading of the statement can only convey the information that Dr. Siess suddenly saw two cars in front of him collide and that he swerved hard in an effort to miss the car blocking his lane.

Mrs. Mannings’ testimony was that she never did see Dr. Siess, was not aware of the collision with his car, and didn’t know that Dr. Siess had collided with her until after the accident, indicating that Dr. Siess’s collision with Mrs. Manning was almost simultaneous with Mrs. Manning’s collision with Mrs. Spiller.

Dr. Siess’s testimony was that he was to the rear of Mrs. Manning when she sud-. denly swerved and blocked his lane immediately ahead of him when her car collided with the Spillers car and spun sideways.

The only evidence of Dr. Siess’s speed is his testimony that he was traveling about 25 miles per hour at the time of the accident, and that all three vehicles involved in the accident were traveling at approximately the same speed.

It seems apparent that Dr. Siess was confronted with a sudden emergency, not of his own making, and took the only possible means of extricating himself by swerving to the left, very nearly succeeding in avoiding the accident. The evidence does not support the view that Dr. Siess failed to see a vehicle stopped in his lane at a time when he could have avoided striking it.

For these reasons, I must respectfully dissent from a finding that Dr. Siess was guilty of contributory negligence.  