
    Diana Kay ARDOIN, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee-Appellant.
    No. 4674.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 30, 1974.
    Reuvan N. Rougeau, Lake Charles, for plaintiff-appellant.
    Stockwell, St. Dizier, Sievert & Viccel-lio, by: Robert W. Clements, Lake Charles, for defendant-appellee.
    Before FRUGÉ, MILLER and WATSON, JJ.
   WATSON, Judge.

Diana Kay Ardoin, plaintiff, has appealed, as inadequate, a $100 jury verdict in her favor against defendant, State Farm Mutual Automobile Insurance Company. Plaintiff’s claim is for injuries sustained while she was a guest passenger in a Toyota automobile driven by Debbie Royer and owned by plaintiff’s father, Allen R. Ar-doin, which was involved in a one vehicle accident on a Texas highway. State Farm has answered the appeal, contending that plaintiff failed to prove negligence on the part of Miss Royer and that the jury should have given judgment in favor of defendant.

The issues, therefore, are: (1) did the jury abuse its much discretion in awarding plaintiff the sum of $100 for her damages; and (2) was there manifest error in the finding of liability ?

The only two witnesses who testified were plaintiff and her father. A report from Dr. G. E. Barham, plaintiff’s attending physician, was received into evidence and was'read to the jury.

Considering first plaintiff’s appeal as to the amount awarded her by the jury, we note that her testimony indicated only minimal injuries, mostly a bruise to the right hip. Dr. Barham’s report did not mention her bruised hip but confirmed the fact that she spent several days in the hospital, beginning approximately one week after the accident, her chief complaint being headaches. The doctor’s report did not specify any objective findings related to the automobile accident, although he mentioned low back pain and a depressive reaction, both of which were included in her complaints. The jury heard plaintiff’s testimony and the doctor’s report. The trier of fact is accorded much discretion in awarding damages. We do not find that its discretion was abused in this case. LSA-C.C. art. 1934.

As to the other issue, defendant contends that the evidence was insufficient for the jury to find liability.

Plaintiff testified that she and Miss Royer were on an overnight trip to Wichita Falls, Texas, and had been traveling since approximately 8:00 p.m. of the previous evening when early the following morning, February 8, 1973, the Toyota automobile left the road after crossing a bridge and went down an embankment into a ditch. Miss Royer was driving, the weather was clear and cold. Plaintiff testified that they had heard radio warnings of ice on bridges and, not too long before the accident, they had passed a three-vehicle wreck on the opposite side of the road.

Although there is reference throughout the proceedings to ice on the bridge, there was no actual testimony by plaintiff that she saw any ice. Her testimony indicates simply that they were riding along when for some reason Miss Royler lost control of the automobile, it ran off the road and wrecked. The owner of the vehicle, plaintiff’s father, testified that the Toyota had good tires and that the vehicle was in good condition, having been checked before the trip by the Toyota dealer in Lakes Charles.

Miss Royer was subpoenaed by the defendant but was not called to testify.

The jury after hearing plaintiff’s testimony and that of her father returned a verdict for plaintiff.

Our review of the record indicates that there is a reasonable evidentiary basis for the jury’s finding and that there is no manifest error.

We believe that a driver who for some unexplained reason loses control of the automobile and runs off the road is presumptively negligent. Some emphasis has been placed on plaintiff’s testimony that she did not know what the driver did improperly. This statement of opinion by plaintiff does not alter the fact of losing control and running off the road, from which the jury could and did infer negligence. We do not find error.

Costs of the appeal will be taxed half against plaintiff and half against defendant.

Affirmed.

MILLER, J., dissents and assigns written reasons.

MILLER, Judge

(dissenting in part).

I respectfully submit that the jury determined that plaintiff was unworthy of belief. Their $100 award rejected her extensive complaints of pain and suffering which plaintiff claimed resulted from this accident. The majority has affirmed the jury award, and I agree that it should not be increased.

It is difficult for me to understand how a guest passenger plaintiff can recover when she judicially declares that she was alert and watching the road, that the driver was not speeding and was driving properly, and that the driver could not have avoided the accident.

Plaintiff was the only witness to testify concerning' the issue of negligence, and her testimony completely absolves the driver Miss Royer of a breach of her duty to exercise ordinary and reasonable care. Plaintiff testified that she was awake and watching the highway at all times prior to and including the time of the accident, that Miss Royer was a good driver and was not driving too fast, and that they did not see ice on the road before or after the accident, not even on the bridge where the accident occurred. Plaintiff testified both at her discovery deposition and at trial that she did not know of anything Miss Royer could have done to avoid the accident. Since plaintiff proved the driver was not negligent, defendant was not called upon to prove the same thing.

An automobile host driver is not an insurer of the safety of her guest passenger. Favalora v. Travelers Insurance Company, 223 So.2d 702 (La.App. 4 Cir. 1969). A driver owes to his guest passenger the duty of exercising ordinary and reasonable care for his guest’s safety. Fontana v. State Farm Mutual Automobile Insurance Company, 173 So.2d 284 (La.App. 3 Cir. 1965).

I fail to find a reasonable basis for the jury determination that Miss Royer (plaintiff’s roommate) breached a legal duty imposed on her to protect against the particular risk involved. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). Except for the fact than an accident occurred, there is nothing in this record to suggest that Miss Royer should have operated the vehicle in a different manner.

No authority has been cited to support the majority’s conclusion “that a driver who for some unexplained reason loses control of the automobile and runs off the road is presumptively negligent.” I respectfully submit that this is not correct.

The majority is apparently relying upon the doctrine of “res ipsa loquitur.” Absent special circumstances calling for application of res ipsa, there is no presumption or inference of negligence on the part of a defendant based upon the mere happening of an accident. Pitre v. Employers Liability Assurance Company, 234 So.2d 847 (La.App. 1 Cir. 1970); Tarbox v. Eason, 179 So.2d 916 (La.App. 2 Cir. 1965); Bauer v. Columbia Casualty Company, 126 So.2d 398 (La.App. 2 Cir. 1961); Talbert v. Tyler, 121 So.2d 854 (La.App. 2 Cir. 1960).

One requirement for application of the res ipsa doctrine is that the facts causing the injury must be peculiarly within the knowledge of defendant and not equally accessible to plaintiff. Langlinais v. Geophysical Service, Inc., 237 La. 585, 111 So. 2d 781 (1959); Davis v. Aetna Insurance Company, 291 So.2d 486 (La.App. 3 Cir. 1974). This requirement was not met because plaintiff was as well informed as the driver concerning the facts causing the injury. In Hebert v. General Accident Fire & Life Assurance Corporation, 48 So.2d 107 (La.App.Orls. 1950), the court held res ipsa inapplicable on finding plaintiff guest passenger as well informed as the driver. 48 So.2d at 109.

Another requirement for application of res ipsa is that the accident must be one which ordinarily does not occur without fault. Langlinais, supra, and Davis, supra. In Schaubhut v. Liberty Mutual Insurance Company, 157 So.2d 346 (La.App. 3 Cir. 1963), res ipsa was held inapplicable where plaintiff proved that an automobile skidded. This was based on the finding that skidding may occur without fault.

I would affirm the jury determination that plaintiff is unworthy of belief and that her extensive complaints of pain and suffering were totally unrelated to the accident. Finding no evidence to support the finding that the driver was negligent I would dismiss plaintiff’s claim.

I respectfully dissent from the holding that plaintiff proved the driver’s negligence. 
      
      . These quotes are typical of her testimony.
      Q. And, as she approached this bridge, your car was going straight ahead?
      A. Right.
      Q. No indication of any problem?
      A. Right.
      Q. And, then as you got on the bridge itself, all of a sudden, without any warning, the car lost control, is that correct?
      A. Indeed it happened, yes, sir.
      Q. And, as you approached this bridge, did you see the ice that was apparently on the bridge?
      A. No, sir.
      Q. So the fact is, Miss Ardoin, and in complete fairness, you really don’t know what caused that accident to happen?
      A. Truly, sir.
      ^ ‡ í|í ‡ ‡
      Q. Now, did you have any complaints regarding the manner in which Debbie had been operating your automobile, as you all drove on this trip and as you approached the area where the accident happened?
      A. Would you rephrase that sir, please?
      Q. Did you have any complaints_
      A. Oh, no, sir.
      Q. About how Debbie was driving the car?
      A. No.
      Q. You never did complain to Debbie about her driving too fast, did you?
      A. Oh, no, sir.
      Q. In point of fact, you didn’t feel that she was driving too fast, did you?
      A. Not to my knowledge, no sir.
      Q. You all had not encountered any ice on the highway or
      A. Oh, no, sir.
      Q. Or bridges prior to your reaching the bridge where the accident happened?
      A. No, sir.
      Q. And, you are not aware of anything that Debbie could have done to have avoided this accident, are you?
      A. No, sir.
      # 5jí 5¡! 5‡! Sfc
      Q. The highway was dry, was it not? In the area where the accident happened?
      A. Yes, sir, it was.
     