
    LUMBER MUTUAL FIRE INSURANCE CO., Plaintiff-Appellee, v. Thomas E. DAVIDSON, et al., Defendants-Appellants.
    No. 5504.
    Court of Appeal of Louisiana. First Circuit.
    June 29, 1962.
    Rehearing Denied Sept. 25, 1962.
    
      Alfred W. Spiller, Hammond, for appellants.
    Pittman & Matheny by Tom H. Matheny, Hammond, for appellee.
    Before ELLIS, HERGET and MILLER, JJ-
   ELLIS, Judge.

On July 28th, 1959 at approximately 12:00 noon, an automobile accident occurred in Hammond, La., at the intersection of Robert and Holly Streets, between an amomo-bile owned by the Consumer Credit Corporation of Bogalusa, Louisiana, and being driven by its Vice President, Fred Gideon LeBlanc, Sr., in a westerly direction on Robert Street, and an automobile owned and being driven by defendant, Thomas E. Davidson, in a northerly direction on Holly Street, and which said automobile was insured by the defendant, Hardware Mutual Casualty Company, Inc.

Suit was filed by the insurer of the Le-Blanc automobile as subrogee, having paid the Consumer Credit Corporation the sum of $649.26 because of the damages to the LeBlanc automobile as a result of the accident, as well as $50.00, the deductible portion of the insurance policy on behalf of Consumer Credit Corporation, against Thomas E. Davidson and the Hardware Mutual Casualty Company, Inc.

The defendants generally denied the allegations of plaintiff’s petition and further pled that their damages were caused solely by the negligence and fault of LeBlanc for driving at an excessive rate of speed, failing to have his vehicle under control and to keep a proper lookout and in grossly ignoring the rights of the Davidson automobile which had pre-empted the intersection before being struck. They charged other acts of negligence to LeBlanc but they are a repetition of those just enumerated. Defendants also pled in the alternative the contributory negligence of LeBlanc and assuming the position of plaintiff in recon-vention prayed for a judgment against the Consumer Credit Corporation and its insurer, Lumber Mutual Fire Insurance Company, Inc. in the total amount of $771.74.

The case was duly tried and judgment was rendered in favor of the plaintiffs as prayed for and against the defendants and plaintiffs in reconvention, rejecting their demands in full and from such judgment the defendants, plaintiffs in reconvention, have appealed.

The plaintiff, with his wife as a passenger, was traveling west on Robert Street at a speed which he estimated at 25 to 30 miles per hour and as he approached the Holly Street intersection he looked to his right, as this intersection was uncontrolled by traffic signals or stop signs, in order that he might honor the superior right of way of any automobile approaching on Holly Street to his right. (LSA-R.S. 32:237, subd. A). He then turned and looked to his left, which was the direction from which the defendant was approaching the intersection, and saw the defendant’s car and realized that the latter had no intention of honoring plaintiff’s superior right of way. He immediately applied his brakes and the skid marks, including those from the front to the rear wheels of fifteen feet which were covered by the car totalled a distance of 27 feet when the front end of his car “bumped” the defendant’s car about the center or slightly to the rear thereof. Plaintiff’s car immediately stopped at the point of impact, which was in his lane of traffic in the north east quarter of the intersection near the north-south center line. The defendant’s car when bumped turned completely around with the back end forward and traveled a distance of 96 feet diagonally across Holly Street in a northwesterly direction where the left side came in contact with a cherry tree 11 to 12 inches in diameter and extensively damaged that side of the car. The damage was described by Officer Edwards as much greater from hitting the tree than from the blow of plaintiff’s car, which the officer described as being rather light.

The plaintiff’s wife testified that she did not know just what speed her husband was making but she knew that it was not very fast and that she looked to the left as their car approached the intersection and saw the defendant’s car traveling north on Holly Street “at a high rate and was a good 40 or SO feet south of the intersection, while we were right at the intersection. I yelled ‘Watch out’ but by that time we had hit.”

The accident was immediately investigated by Officer Edwards of the City of Hammond and 'he took a statement from Mr. LeBlanc whom he described as very frank and honest and who told him “that he wouldn’t say he was doing exactly 25 but maybe doing 30 or 35 * * *.” The speed limit was 25 miles per hour in that section of Hammond, and the officer put on his report that LeBlanc was speeding and explained his reason therefor by saying, “ * * * I am not an expert but these skid marks, it is pretty hard to skid a car 27 feet on di-y pavement going 25 miles an hour, which is our speed limit in the City of Hammond, there is no question about the other car having excessive speed.” The length of the LeBlanc car was estimated at approximately 15 feet and it was covering that much of the 27 feet of skid marks, leaving 12 feet to the rear of the car. It actually, therefore, skidded only 12 feet before impact. The speed of the LeBlanc car could not have been excessive under the circumstances or it could not have been stopped in this distance, and it was practically at a stop when it bumped the Davidson car. According to the speed charts the officer is in error in his opinion that it is hard to skid a car even 27 feet going 25 miles an hour.

On the other hand, Davidson told the officer right after the accident that he was “Just flying low, driving too fast, in a hurry to get back up to Independence.” Officer Edwards testified further with regard to Davidson’s statement that: “He, in direct words to me, assumed, the responsibility of the accident, you asked me so I am going to tell you, he assumed the full responsibility of the accident by his gross carelessness and excess rate of speed in the City Limits of Hammond. If I had been crossing the intersection, it would have been me or him the same, that is an opinion again.” Officer Edwards also stated that Mr. LeBlanc denied that it was his fault but Davidson never denied it and at all times said that the accident was due “to the excessive speed and driving too fast.” Officer Edwards -testified that Davidson would “have had to been doing over 50 or’ 55 miles an hour.” Davidson attempted to deiiy this on the stand but we believe the District Judge was absolutely correct in rejecting his testimony.

We are therefore faced with a case in which there is no question of the negligence of Davidson, one of the defendants, but counsel argues strenuously that LeBlanc forfeited his right of way by not keeping a proper lookout and driving at an excessive speed. In the first place, LeBlanc had the right of way, and, secondly, Le-Blanc under these facts did not forfeit his right of way. He did what he was legally obligated to do as he approached this intersection, for at a reasonable distance he looked to his right in order to honor the favored right of way insofar as he was concerned. He then started to turn his head to the left and there was the defendant. LeBlanc immediately applied his brakes in an attempt to stop, which was all that he could do under the circumstances. Evidently Mrs. LeBlanc looked to the left at approximately the same time her husband looked to the right and she saw the Davidson car coming at a fast or terrific rate of speed at a distance which she estimated of 40 to SO feet from the intersection, and she immediately yelled “Watch out”, but by that time the Davidson car had come into the intersection and LeBlanc skidded into it and bumped it on the right side. LeBlanc had almost completely stopped his car at the time of the collision, whereas the Davidson vehicle continued in a northwesterly direction for some 96 feet after completely turning around and skidding sideways, striking a tree and inflicting most of the damage to his car.

In considering all the facts and the length of the skid marks we find no excessive speed as the proximate cause of the accident on the part of LeBlanc.

On the other hand the testimony reveals that Davidson was going at a speed estimated at least SO miles an hour and from the facts and circumstances probably sixty. However, at 50 miles per hour he was going 73 feet per second. The testimony also shows that the LeBlancs saw his car before he saw them for Davidson testified that when he looked and 3aw the Le-Blanc car approaching the intersection, the brakes had already been applied. Davidson then attempted to beat the LeBlanc car across the intersection which, of course, destroys any pre-emption claims that he might make, by accelerating his car.

There is some argument that a house on the corner made it a somewhat blind intersection to LeBlanc’s left, however, there is testimony that LeBlanc, when 30 feet from the intersection and after having previously looked to his right, saw the Davidson car approaching at the high rate of speed and applied his brakes.

Under the physical facts and the testimony, we are convinced that LeBlanc was not driving at an excessive rate of speed, nor did he fail to keep a proper look out. He had a right to assume that traffic coming from his left would honor his superior right of way and he was only charged with the duty of observing the contrary, and this LeBlanc did at the earliest possible moment and immediately took action to brake his car to a stop. See Benoit v. Vincent, La.App., 132 So.2d 75, Randall v. Baton Rouge Bus Co., 240 La. 527, 124 So.2d 535; Youngblood v. Robison, 239 La. 338, 118 So.2d 431; Henderson v. Central Mutual Ins. Co., 238 La. 250, 115 So.2d 339; Steele for Use and Benefit of Steele v. State Farm Mutual Ins. Co., 235 La. 564, 105 So.2d 222; Fontenot v. Liberty Mutual Ins. Co., La.App. 3 Cir., 130 So.2d 462; Warner v. Insurance Co. of State of Pennsylvania, La.App. 3 Cir., 129 So.2d 320; Hernandez v. State Farm Mutual Auto. Ins. Co., La.App. 3 Cir., 128 So.2d 833; Andrea v. Hicks, La.App. 3 Cir., 125 So.2d 251. Had LeBlanc seen the Davidson car at 75 feet he would have only had approximately one second to try to avoid the accident, which was an impossibility. He really would not have had this much time as Davidson testified that when he got about 30 feet from the intersection was the first time he saw the LeBlanc car which already had its brakes on and Davidson speeded up which would have cut the time to less than one second. It was utterly impossible for LeBlanc to avoid the accident. Under the facts, even if LeBlanc had been going 20 miles an hour or 25 miles an hour it would have been impossible for him to have avoided this accident. Whatever speed he was going was not a proximate cause of the accident.

We see no necessity for discussing the long line of cases which hold that one on the favored street who is driving at an excessive rate of speed which is the proximate cause of the accident or who fails to maintain a proper lookout and see what he should have seen forfeits his right of way, for those are not the facts in this case.

The collision in this case was due to the gross negligence of Davidson in operating his car at an excessive rate of speed of 50 miles or more per hour in a 25 mile speed zone and in failing to keep a proper lookout.

We find no error whatsoever in the judgment of the District Court and it is accordingly affirmed.

Affirmed.

HERGET, Judge

(dissenting).

Plaintiff, Lumber Mutual Fire Insurance Company, having been subrogated to the rights under a collision insurance policy issued to Consumers Credit Corporation instituted suit against Thomas E. Davidson and his liability insurer Hardware Mutual Casualty Company for damages to its assured’s automobile in the sum of $699.26. The damages arose out of a collision of its insured vehicle with Davidson’s vehicle at the intersection of Robert and Holly Streets in the City of Hammond, Louisiana on July 28, 1959. Defendant, Hardware Mutual Casualty Company, answered the suit denying the allegations of Plaintiff’s petition and, in the alternative, plead contributory negligence on the part of the driver of Plaintiff’s assured’s vehicle thereby barring Plaintiff’s recovery; and, assuming the position of Plaintiff in reconvention, alleged subrogation to the rights of its insured, Thomas E. Davidson, and prayed for damages to Davidson’s vehicle in the sum of $771.74.

The evidence reveals that Mr. Fred G. LeBlanc, Sr. was driving Plaintiff’s insured vehicle west on Robert Street and approached the intersection of Robert and Holly Streets shortly afternoon immediately prior to the collision. The collision occurred when Mr. LeBlanc’s vehicle proceeded into the intersection and struck the right rear door of the vehicle owned and operated by defendant, Thomas E. Davidson, who was proceeding north on Holly Street. From the testimony of Robert L. Edwards, Assistant Chief of Police for the City of Hammond, who did not see the collision but made an investigation immediately subsequent thereto, the day was clear and the streets were dry; Defendant’s vehicle left no skid marks but traveled some 96 feet northwest of the point of collision, the impact having occurred in the northeast quadrant of the intersection; the LeBlanc vehicle was located at the point of collision and there were 27 feet of skid marks attributed by him to this vehicle; neither of the streets, each containing two lanes, is controlled by any traffic signal and the speed limit in the City of Hammond is 25 miles per hour. Upon his investigation he concluded each of the -drivers was exceeding the speed limit at the time of the collision. In this respect insofar as the LeBlanc vehicle was concerned his observation was due to the 27 feet of skid marks together with the statement of Mr. LeBlanc made at that time “ * * * that he wouldn’t say he was doing exactly 25 but maybe doing 30 or 35 * * * ” immediately prior to the collision. His conclusion as to the speed of Defendant’s vehicle was predicated upon a statement allegedly made to him at that time by defendant Davidson “Just flying low, driving too fast, in a hurry to get back up to Independence.” The officer further testified that Mr. Davidson assumed full responsibility for the accident because of his gross carelessness and excess rate of speed.

Mr. LeBlanc, testifying on behalf of Plaintiff, stated that he had taken the back street in Hammond to avoid the traffic lights while driving through on his way to Lafayette ; that when he approached the intersection he looked to his right, saw no vehicles approaching and turned to look to the left but did not look fast enough as Defendant’s vehicle was out in front of him and before he could stop he hit him. He further related that he had attempted to brake his car some 125 feet before the impact as estimated by the police; however, when apprised 27 feet was the measurement of the skid marks shown in the report of the officer and queried in respect to whether or not he would care to refresh his memory in the light of said report, he said:

“A. No, for the reason I am saying 125 feet because the idea is that my brakes no doubt weren’t applied tight enough at the beginning to show any skid marks, when I saw I was going to hit that car I really shut down.
“Q. As I understand you now, your testimony is the skid marks were actually 125 feet long?
“A. No, I said I thought that the police officer estimated it, if it is 27 feet then it is 27 feet.”

Defendant Davidson denied making any statement to Officer Edwards other than to say that he was traveling 25 to 30 miles per hour immediately prior to the collision, and as he testified on the trial of the case; that he slowed down at the intersection, observed Plaintiff’s assured’s vehicle being braked, and believing that he had time to proceed through the intersection accelerated his vehicle despite which he was unable to safely traverse the intersection and his car was struck on the right rear door. He specifically denied that he had assumed full blame for the accident.

From the testimony of the witnesses it is evident that on the southeast corner of the intersection there was a building and shrubbery which partially obstructed the view of the respective drivers as they approached the intersection. On this set of facts the Trial Court, for oral reasons assigned, rendered judgment in favor of Plaintiff and against Defendants as prayed for and dismissed the reconventional demand of defendant Hardware Mutual Insurance Company; from which judgment Defendants appealed to this Court.

In the absence of a semaphore or other regulatory traffic signals at this intersection, the right of way is governed by LSA-R.S. 32:237, paragraph A, as follows:

“When two vehicles approach or enter an intersection at approximately the same time, the driver approaching from the right shall have the right of way. The driver of any vehicle traveling at an unlawful rate of speed or in an unlawful manner shall forfeit any right of way which he might otherwise have.”

Though Plaintiff under the provisions of the statute quoted supra is accorded the right of way, in interpreting the rights accorded to one in the position of Plaintiff’s assured’s vehicle approaching the intersection and the circumstances under which this collision occurred, the courts have held that such right of way is not absolute but may be forfeited to the driver of a vehicle who has pre-empted the intersection and further the superior right of way afforded to a driver under such circumstances may also be forfeited by negligence on his part in driving at an excessive rate of speed or in failing to maintain a proper lookout. Harris v. Travelers Indemnity Co. of Hartford, Conn., La.App., 70 So.2d 235; Wilson v. Yellow Cab Co. of Shreveport, La.App., 64 So.2d 463; Gayle v. J. Ray McDermott & Co., La.App., 34 So.2d 631. Accordingly, the negligence of Mr. LeBlanc in approaching this intersection at an excessive rate of speed and without having made observation of traffic approaching from his left with his car traveling at a speed that upon his actual observance of the Defendant’s car he was unable to stop, especially where his view of Defendant’s vehicle approaching on the inferior street was impaired, renders him guilty of negligence precluding the right of his subrogee to recover.

The negligence of defendant Davidson consisted of (1) approaching a blind corner at an excessive rate of speed so that he was unable to accord the right of way to vehicles approaching from his right. Mustin v. West, La.App., 46 So.2d 136. (2) Nor can Defendant eliminate his negligence by relying upon the pre-emption of the intersection, for it is settled that to pre-empt the intersection the driver on the inferior street must make his entrance not by hastening to pre-empt the crossing streets or beating the approaching vehicle to entry therein but under circumstances that his entrance in the intersection is made at a time that with normal speed and observing the intervening vehicle at a distance from the intersection his crossing might reasonably be anticipated to be uneventful. Harris v. Travelers Indemnity Company of Hartford, Conn., supra. In the case of Briscoe v. State Farm Mutual Automobile Insurance Company, La. App., 134 So.2d 128, the Court of Appeal, Second Circuit, in construing the pre-emption of an intersection by a vehicle on an inferior street, said:

“ * * * Under the circumstances, Briscoe should have yielded the right-of-way to the vehicle approaching from the right. As pointed out above, in order to legally preempt an intersection, the motorist on the inferior street must enter at a time when he may reasonably expect to clear same without interfering with oncoming traffic. * * * ”

Being of the view, for the reasons stated herein, that this accident must be attributed to the negligence of both drivers, I respectfully dissent from the judgment of the ma-. jority in favor of Plaintiff and against Defendants.  