
    Jesse B. KIRKLAND v. Joseph L. DANNA et al.
    No. 5600.
    Court of Appeal of Louisiana. First Circuit.
    June 29, 1962.
    Ben N. Tucker, Hammond, for appellant.
    Pittman & Matheny by Tom H. Matheny, Hammond, for appellee.
    Before LOTTINGER, LANDRY and REID, JJ.
   LOTTINGER, Judge.

This is a tort action arising out of a collision which occurred at about 8:45 P. M. on June 1, 1959, in the Parish of Tangipahoa between a 1956 Chevrolet automobile owned and driven by plaintiff, Jesse B. Kirkland, and a 1952 model White truck driven by defendant Joseph L. Danna and owned by his employer, Hilltop Enterprises, Inc., and insured by Maryland Casualty Company, Inc., the latter two parties being also named as defendants. The matter is before us on an appeal taken by the defendants from a judgment of the Lower Court rendered in favor of the plaintiff.

The record shows that the accident occurred at the intersection of Louisiana Highway No. 442 and what is known as the Burnthorne Road. Highway No. 442 runs in an east-west direction and is intersected on the south by the Burnthorne Road. Just previous to the accident plaintiff was proceeding easterly on Highway No. 442 and Danna was in the process of trying to back his trailer and tractor into the Burnthorne Road. The following is Danna’s version of how the accident occurred :

“Q. Explain to the Court just what had happened leading up to this accident which happened on Louisiana Highway Number 442 and approximately 40-feet west of the intersection with the Burnthorne Road?
• “A. Well, I was backing my truck and trailer up- during the time of the impact and Kirkland ran into me, that was the second time I had tried it, I had -tried it the first time and failed and I had to pull up once more and tried the second time, and was backing into it at the time that Mr. Kirkland hit me.
“Q. How far down the-road was Mr. Kirkland approximately when first you noticed his approach?
“A. I would say maybe Yi mile, approximately Y¿ mile.
“Q. Is the road straight "there?
“A. Yes sir it is.
“Q. Were your lights burning?
“A. Yes sir they were, I had on my headlights, clearance lights and I had my left signal light on, yes, sir.
“Q. How many clearance lights were on your vehicle?
“A. We usually have three on the tank, one in front, one in the center and one in the rear, not counting the back tail lights.
“Q. Now, were all of those lights burning at the time you had the accident?
"A. Yes sir, they have to be burning when you are on the highway.
“Q. Now, your headlights were also burning ?
“A. Yes sir.
“Q. Will you explain how you were backing the truck and trailer into the Burnthorne Road?
“A. Well, in order for me to back into the Burnthorne Road I had to be on the east lane of Highway Number 442 in order to maneuver my tractor and to get my tank into the lane and not let my tractor go into the ditch on the west side, if I had been on the west side then I couldn’t very well get my trailer off the road due to the fact that the front end of my tractor would have gone into the ditch.
“Q. Now, when you say the east lane, do you mean the east bound traffic lane?
“A. Yes sir.
“Q. and the, — ■
“A. No sir, now when I am, — will you ask that question again?
“Q. Well, when you mention that your truck was on the east bound traffic lane that is the south side of the road, isn’t it?
“A. Yes sir, that is right.
“Q. Now, is that commonly termed a jackknifing operation?
“A. Yes sir it is.
“Q. Was your tractor and your trailer at an angle sort of at an acute angle ?
“A. Yes sir, they were at that time.
“Q. Was your trailer, — the back end of your trailer into any part of the Burnthorne Road?
“A. Yes sir, part of it was in the Burnthorne driveway. •
“Q. Now, at the time you are certain you were moving backwards rather than forwards?
“A. Yes, sir, I was moving backwards.
“Q. Now, were you using any flash light, or anything, to aid you in getting into the Burnthorne Road?
“A. Yes sir, I was holding the flash light with my left hand throwing the light to the rear of the tank, and maneuvering my tractor with my right hand, my steering wheel.
“Q. When did you first realize that there was any danger of impending collision?
“A. Well, I didn’t, it was all over before I knew it, I just figured I had time to get my whole truck off the highway before Mr. Kirkland got there, although I didn’t know it was Mr. Kirkland at that time.
“Q. Was there anything in the road which was obstructing the view of Mr. Kirkland?
“A. No sir, nothing at all.”
* * * * * *
“Q. All of your lights were Burning?
“A. Yes sir.
“Q. And they were burning when you first saw Mr. Kirkland down the road about i/£ mile away ?
“A. Yes sir.
“Q. And the road is straight asM level at that point ?
“A. Yes sir.
“Q. And the condition of the road, what was the condition of the roadway?
“A. It was damp, it had been raining that evening but it wasn’t raining at that time, it was all right.”

The plaintiff gave the following version of the accident:

“Q. To save the Court’s time, Mr. Kirkland, would you just tell us in your own words how the accident happened, where you were going, what you were doing and then what happened?
“A. Well, I was on my way to work, travelling east on this Tickfaw 442 Highway, and I saw the headlights of a truck or something, up ahead, and I knew it was a moving vehicle, but couldn’t tell — as I got closer I dimmed my lights and I got no dimmers back, nothing, and I slowed down my speed to about 25 or 30, or maybe 35 miles an hour, and the lights blinded me and I saw I was going to get hit if I didn’t hit the ditch, or do something, so I took to the ditch as far to the right as I could go and I hit this milk truck driven by Mr. Danna, I hit the bumper on his truck with my left side, it was the left bumper in the front of his truck. The whole road was blocked there was no way I could go around, neither way on either side.”
*. *. * * * *
“Q. What'kind of road surface is-this ?
“A. Gravelled.
“Q. I believe you said this milk , truck was in your lane of,traffic?
“A. That is correcf.
“Q. Now, at what point on the road was the impact, where on the road was the impact?
, “A. Over on the right hand side in f my lane, it was the way I was coming..-
“Q. Now, with reference to’ the two vehicles, what portion of the two vehicles struck each other?
“A. The left front of my car hit the left front end of the bumper of the truck.”
* * * * * *
“Q. Was the milk truck moving' when you hit it?
“A. As far as I popld tell I couldn-’t tell what it was doing, he said he was backing up trying to back off the highway into a little lane.
“XQ. You were headed in an easterly direction on Highway Number 442 at the time of the accident? '
"A. Yes sir.
“XQ. And how far away were you from the truck driven by Mr. Danna at the time you first noticed it ?
“A. Oh, I would say 5, 6 or 700 feet, possibly.
“XQ. Could it have been as much as or Yz mile ?
“A. It is possible.
“XQ. How fast were you going?
“A. About 30 or 35 miles an hour.”
******
“XQ. Was there any reason that you could think of that you couldn’t place the location of the truck in the road with the lights shining?
“A. The only reason I could give was because of the way the man was handling the tractor to get his trailer off the road, I am no truck driver, but I understand you have to weave in one way or the other to get the trailer to go in a certain direction.
“XQ. In other words, you understand that in backing a truck off the road a truck and trailer of that nature, that you sort of have to jack-knife it into the correct position?
“A. Yes sir.
“BY THE COURT: Was it what you call a tandem trailer?
“A. Yes sir.”
******
“XQ. Did you notice that the left directional signal light was blinking?
“A. There were no blinker lights.
“XQ. But you did see the headlights ?
“A. Yes sir.
“XQ. After the accident did you look to see if the blinkers were on the left side of the truck?
“A. I did.
“XQ. Were they?
“A. No sir, they might have been on it, but none of them were blinking.
“XQ. And how about the clearance lights on the side of the trailer of the truck ?
“A. I think they were burning.”

From the above and foregoing we think it is quite clear that Danna was negligent and, further equally clear that the plaintiff was guilty of contributory negligence which was a proximate cause of the accident. The truck and trailer were blocking the latter’s lane of traffic and there is no reason whatever why he should not have realized that fact and taken the proper action rather than to continue to proceed until collision was inevitable.

For the reasons assigned the judgment appealed from is reversed and plaintiff’s suit dismissed at his cost.

Judgment reversed.  