
    Mrs. Annette Gray Johnson, widow of Henry JOHNSON v. Robert L. POWELL, Stephens Chevrolet, Inc., and Liberty Mutual Insurance Co.
    No. 7722.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.
    
      Windhorst, Heisler, De Laup & Wysocki, Melvin Ripp, Jr., New Orleans, for plaintiff-appellant.
    Bruce J. Borrello, New Orleans, for defendants-appellees.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   LEMMON, Judge.

Mrs. Henry Johnson has appealed from a judgment which dismissed her suit to recover damages for the wrongful death of her husband in an automobile-pedestrian accident. The principal issue on appeal is the applicability of the last clear chance doctrine.

The accident occurred at 10:00 p.m. at the intersection of Jefferson Highway and Shrewsbury Road. Robert Powell was traveling east on Jefferson, which was a divided highway with three 12-foot wide lanes for eastbound traffic and also' a left turning lane at that intersection. Shrews-bury was a two-lane, two-way undivided street, 54 feet in width. The intersection was controlled by a signal light.

Powell had entered Jefferson about two blocks before the intersection and was driving in the center of the three travel lanes. Johnson was crossing from north to south, moving from the neutral ground to the sidewalk. Although Powell stated he never saw Johnson until the time of impact, all witnesses (in hopeless conflict on other points) agreed that some skidding occurred before the pedestrian was hit, indicating that prior to the impact Powell had seen and reacted to some stimulus and that there was sufficient additional time for his brakes to lock and begin skidding.

The trial court found, in written reasons, that Powell was traveling within the posted speed limit of 35 miles per hour as he approached the intersection; that Powell entered the intersection on a green light; and that Johnson crossed on an unfavorable light in an intoxicated condition. While there was also other evidence from which a contrary conclusion could reasonably be reached, there is sufficient credible evidence to support these findings, and we cannot say these factual findings were manifestly erroneous.

The judgment, however, held Powell negligent for failing to exercise proper vigilance and to keep his car under proper control. Nevertheless, the suit was dismissed because of Johnson’s contributory negligence.

On appeal Mrs. Johnson, in addition to urging manifest error in the factual findings discussed above, argues the applicability of the doctrine of last clear chance. She contends that Johnson was in a position of peril from which he was unable to extricate himself and that Powell should have discovered Johnson’s peril while he (Powell) had a reasonable opportunity to avoid the accident.

Since Powell’s car, while in the middle lane, struck Johnson with the center of the hood, Johnson had walked approximately 30 feet (crossing 2V2 lanes) from the median to the point of impact. In the meantime Powell was traveling at 35 miles per hour or 51 feet per second, perhaps ten times faster than Johnson who was walking at a normal rate (perhaps three miles per hour, or four to five feet per second). Other significant factors in assessing Powell’s behavior are that there was little or no other eastbound traffic and that Johnson was a dark complexioned black man wearing dark clothes.

We agree that Powell should have seen Johnson earlier. However, the penalty the law imposes upon a driver for failing to exercise proper vigilance is that the driver is presumed to have seen that which he should have seen.

As to Powell’s initial negligence, we note that if at some earlier point in time he had seen Johnson violating the law and crossing against the light (and we presume in law that he did see this conduct earlier), Powell had the duty to take reasonable precautions against hitting Johnson. Thus, Powell arguably was negligent not only in failing to see Johnson earlier, but thereafter in failing to avoid striking him.

As to the determination of last clear chance, however, Powell (still presuming he had seen Johnson earlier) would have been reasonable in assuming when Johnson first left the median that the pedestrian would stop at some point before stepping directly into his (Powell’s) lane. By the same token Johnson was not in a position of peril from which he could not extricate himself until just before he reached the lane in which Powell was traveling. Therefore, if Powell had seen Johnson (whom all witnesses described as walking normally, without staggering) two or three seconds earlier, there was nothing to indicate at that moment that Johnson (then barely in the left lane or perhaps still in the turning lane) was in peril. Compare Bergeron v. Department of Highways, 221 La. 595, 60 So.2d 4 (1952). Furthermore, since the doctrine of last clear chance applies to both parties (Bergeron, supra), either party at that point could have avoided the accident, and Johnson had an equal (and perhaps superior) chance to do so.

Moreover, the doctrine of last clear chance contemplates that the defendant (assuming he saw what he should have seen when he should have seen it) must have a reasonable opportunity to avoid the accident after the plaintiff is in a position of peril from which he cannot extricate himself. Two or three seconds before Powell sensed the need to take action, Johnson could have avoided the impending danger by merely stopping. But when Johnson continued walking and assumed a position of peril from which he could not thereafter extricate himself, Powell no longer had a reasonable (much less clear) chance to avoid the accident.

This accident occurred because an intoxicated pedestrian crossed the street on an unfavorable signal in complete disregard for oncoming traffic. While the motorist under the circumstances should have seen the pedestrian earlier (and was negligent in not doing so), this factor standing alone does not fulfill the requirements for applicability of last clear chance.

The judgment is affirmed.

AFFIRMED.

SCHOTT, Judge,

dissenting:

After a trial which, with respect to the liability of defendant, consisted of the testimony of defendant and his wife, two police officers who investigated the accident and three other witnesses, the trial judge made various findings of fact which include the following: 1) Powell had been traveling at approximately 35 miles an hour as he approached the intersection; 2) decedent had been standing on the median; 3) as Powell approached the intersection decedent in an intoxicated condition stepped from the median with the red light facing him and proceeded to walk south across the left travel-lane and into the middle travel-lane where he was struck by Powell’s automobile; 4) as Powell approached the intersection a green light faced him and continued to face him as he reached the intersection; 5) Powell did not see the deceased walking into the path of his vehicle until decedent was struck.

From these factual findings the trial judge arrived at the following specific conclusions:

“Powell was negligent in not keeping his vehicle under proper control and in failing to exercise proper vigilance.
“Henry Johnson was also negligent in walking across the highway with a red traffic signal light facing him and in the face of approaching traffic and his negligence was a substantial contributing cause of this tragic accident.”

The trial judge dismissed plaintiff’s suit on the basis of her husband’s contributory negligence.

On appeal, plaintiff takes issue with the trial judge’s factual findings and conclusions and seeks a reversal on those facts. She also urges that the doctrine of last clear chance applies and supports a reversal. On this last point, I agree with her.

In order for the doctrine of last clear chance to apply, the following conditions must exist: 1) The plaintiff was in a position of peril and he was unaware of the peril or unable to extricate himself from that position. 2) Defendant actually discovered plaintiff’s peril or should have discovered plaintiff’s peril. 3) At the time that defendant discovered or should have discovered plaintiff’s peril, defendant had a reasonable opportunity to avoid the accident. Foxworth v. State Farm Mutual Automobile Ins. Co., 308 So.2d 348 (La.App. 4th Cir. 1975).

The trial judge’s finding that defendant was negligent is supported by defendant’s own admission that he did not see the decedent at any time until the moment of impact. Of course this admission must be considered in the light of the skid marks which show that defendant saw decedent a few moments before the impact, i. e., when he began to apply his brakes. In any event, this intersection was adequately lighted as was the highway approaching the intersection. It is clear that had defendant seen what he should have seen and been in control of his vehicle he would have had a reasonable opportunity to avoid the accident. But my colleagues have found that the first requirement for the application of the doctrine did not exist because decedent was not in a position of peril at the time defendant should have discovered his presence on the road ahead of him. They say that decedent might have been in the process of traversing the left lane of the highway as defendant approached but until decedent actually stepped into the center lane in the path of defendant’s vehicle he was not in a position of peril. Stated differently, they hold that defendant was not under any duty to anticipate that decedent was going to leave the left lane where he was safe and step into the center lane where he was sure to be struck unless defendant stopped sooner or changed his course.

The majority view seems to be supported by this court’s opinion in Robertson v. Di Gerolamo, 224 So.2d 118 (La.App. 4th Cir. 1969) where a drunken pedestrian who stepped from a neutral ground into the path of defendant’s vehicle was denied recovery pursuant to the following discussion:

“. . .We accept the uncontradicted accounts of the accident given by DiGerolamo and his companion which clearly establish Plaintiff stepped into the path of the Defendant-vehicle when the driver could do nothing to avert his injury. We cannot presume that, because Plaintiff was intoxicated, his intoxication should have been known to the approaching driver. All witnesses testified he stood in the neutral ground area not looking toward the approaching traffic but looking straight 'ahead. We think it was reasonable for the driver to assume the Plaintiff had observed what was obvious, i. e., a traffic signal that cautioned him to wait before crossing. It is not only the motorist who is charged with a duty to keep a proper lookout, but pedestrians as well

But defendant’s first problem is that his failure to see decedent at all until the last moment before the accident prevented him from exerting even the slightest effort to avoid it. Had he seen decedent crossing that left lane of traffic, obviously bound for the center lane within a few steps thereof, he would surely have been under some duty to sound his horn, put on his brakes at least to slow his vehicle if not to stop it, or move into the right lane which was clear. He took none of these steps not because of any intelligent appraisal of plaintiff’s position, as in the Robertson case, but because he didn’t see decedent despite the fact that he should have seen him.

In effect, my colleagues hold that defendant was under no duty to take the measures suggested to avoid the accident because if he had seen decedent approaching the center lane, decedent was not in a position of peril at that time. Only at the moment when decedent entered the center lane was he in a position of peril and at that moment defendant had no reasonable opportunity to avoid the accident. My answer is that one operating an automobile at 35 miles per hour on a collision course with a pedestrian about to enter his path cannot be said to act reasonably under the circumstances when he simply continues along that collision course without taking any precautions with the intractable hope that the pedestrian will, a) see him, and b) stop before a collision occurs. It would be inhumane to hold otherwise.

Once the conclusion is reached that decedent was in a position of peril as he crossed the left lane and was about to enter the center lane, the question becomes whether decedent was unaware of the peril or unable to extricate himself from that position. The trial judge found and the record amply supports the finding that decedent was highly intoxicated at the time of the accident. According to one of defendant’s experts decedent was nearly comatose. From this finding it follows that decedent was probably unaware of the peril he was in. While voluntary intoxication does not normally provide a party in an accident with any special consideration and while normally his conduct is judged on the basis of what it should have been had it not been for the intoxication, the doctrine of last clear chance seems to depart from this principle. For instance, in Foxworth v. State Farm Automobile Ins. Co., supra, the plaintiff, while in a drunken, unconscious state lying in a driveway, was allowed recovery. And in Jackson v. Cook, 189 La. 860, 181 So. 195 (1938) the plaintiff, while drunk and staggering along the road, was allowed recovery. The citation of these cases is not intended to suggest that there is any evidence that defendant should have realized decedent in the instant case was drunk, but they do seem to support the view that the last clear chance doctrine is truly a humanitarian doctrine designed to afford recovery to a helpless plaintiff where ordinarily the doctrine of contributory negligence would bar his recovery even where that plaintiff is helpless because of his own voluntary intoxication.

I would reverse the judgment of the trial court. 
      
      . The investigating officer described the lighting as “dark with continuous street lights”. In the 17 photographs taken immediately after the accident, it was difficult to see people in dark clothes who were some distance from the camera.
      We disregard the officer’s testimony about skid marks as not proved to have been made by Powell’s car. The photographs show two sets of diverging skid marks, both of which ended some distance from the point Powell’s car came to rest.
     
      
      . The fact of intoxication does not excuse a pedestrian from extricating himself from a potential position of peril by merely refraining to continue on his same course.
     