author: AYRES, Judge.

text:
    Seeward M. CARLSON, Plaintiff-Appellant, v. FIDELITY MUTUAL INSURANCE CO. et al., Defendants-Appellees.
    No. 8527.
    Court of Appeal of Louisiana. Second Circuit.
    June 1956.

      William H. Parker, Shreveport, for appellant.
    Browne, Browne & Bodenheimer, Shreveport, for appellees.
   AYRES, Judge.

Plaintiff by this action seeks to recover from L. G. Powell, Charles D. Powell and the Fidelity Mutual Insurance Company, Powell’s public liability insurance carrier, damages for personal injuries allegedly sustained in an automobile collision of April 30, 1955, at the intersection of Youree Drive Extension and East Olive Street in the City of Shreveport.

From a judgment in accordance with a jury verdict rejecting his demands, plaintiff has appealed devolutively to this court.

The determining factors in this litigation are primarily factual. For a proper understanding of the issues, the locale or the scene of the accident will first be described. Youree Drive Extension is a four-lane main thoroughfare and forms a segment of State Highway One and runs in a general north and south course. This highway is constructed of concrete pavement of two double lanes of a width of 26 feet each, separated by a neutral ground having a width of 32 feet. Alongside and extending most of the distance of this extension are local or secondary roads. Traffic on this highway is very heavy. The speed limit is 45 miles per hour. One of the streets intersecting Youree Drive Extension is East Olive, which generally takes an east and west course. Although traffic at this intersection was uncontrolled so far as concerns automatic control signals, “stop” signs were posted on East Olive against traffic entering said thoroughfare. All traffic, therefore, was required to come to a stop before entering upon Youree Drive Extension, which was accorded right of way by statutory regulations.

On the occasion of the accident involved, occurring at approximately 4:45 P. M., plaintiff was driving a Jeep station wagon west on East Olive Street towards Youree Drive Extension with the intention of crossing and continuing westward on East Olive Street. Charles D. Powell, minor son of L. G. Powell, was driving a Bel Aire Chevrolet in a southerly direction on You-ree Drive Extension. A collision occurred between plaintiff’s Jeep and defendant’s Chevrolet at a point slightly west of the center of the southbound traffic lanes of Youree Drive Extension.

Plaintiff’s contention is that Charles D. Powell was guilty of negligence proximate-3y causing the accident, especially in failing to maintain a proper lookout and to yield the right of way to plaintiff, in traveling at an excessive rate of speed, and, finally, in failing to avail himself of the last clear chance to avoid the accident. Defendant’s position is that Powell was not guilty of negligence but that plaintiff was guilty of negligence proximately causing said accident, or, in the alternative, contributory negligence in attempting to cross a preferential street when it was unsafe to do so, and in failing to keep a proper lookout.

From our appreciation of the evidence and review of the record, we are not convinced that Charles D. Powell was guilty of negligence constituting a proximate cause of the accident. To the contrary, it is established by a preponderance of the evidence that plaintiff was guilty of negligence constituting the proximate cause of the accident.

On the question of liability, the testimony of three witnesses, in addition to that of his own, was offered by plaintiff. These witnesses were Gracie Harper, K. P. Moore and Tommy Pineset. Plaintiff repudiated the testimony of the first two. Gracie Harper testified that while sitting on her front porch she saw the events leading up to and including the accident itself; that, after plaintiff’s Jeep and the bicycle of Tommy Pineset had reached the neutral ground, she saw two automobiles approaching from the north, one behind the other but some distance apart; also, that the first of these slowed down and permitted the bicycle to cross Youree Drive Extension. After the passage of the first car, the second followed and the collision occurred in the intersection between it and plaintiff’s vehicle. According to her testimony, the bicycle had traveled 50 feet across the street when the accident occurred. K. P. Moore, who was standing on the south side of East Olive Street near the intersection awaiting an opportunity to cross Youree Drive, opined “Well, I’ll get across after a while”. Moore testified that he saw the Jeep stopped in line with the neutral ground and in a place of safety and that the collision occurred when plaintiff drove out into the southbound lanes of the highway. The witness saw the approach of the Chevrolet coming down an incline “drap-pin’ off the hill”, and expressed an opinion that had the' Chevrolet slowed down, the plaintiff could have made a successful crossing of the intersection. He could not testify that the Chevrolet exceeded the usual speed of vehicles generally on this highway.

Gracie Harper was of the opinion the Chevrolet- increased its speed as it approached the intersection. She stated: “When it squatted to the ground to make high speed is when it struck, * * * and I see the blue smoke flew from the muffin (sic) pipe. And that just Mewed his station wagon into the far gravel lane, and pushed it right into that sign-post and that’s what kept it from turning bottom-upwards.” Later, she testified she heard the squeaking of the brakes and the skidding of the tires when young Powell was slowing and attempting to stop to avoid the collision. This witness’s testimony was repudiated by the plaintiff as untrue.

Therefore, the only evidence to establish the fact that plaintiff attempted the crossing when time, space and opportunity permitted him to do so safely rests upon the testimony of Tommy Pineset. Reading of his testimony indicates that it is uncertain and indefinite. As plaintiff’s vehicle pulled alongside him in the neutral zone, Pineset, on his bicycle, proceeded ahead of the Jeep and by speeding his bicycle was enabled to successfully cross ahead of the approaching car. He was, according to his testimony, 12 feet beyond the intersection when he heard the crash. He, therefore, did not see the collision itself. Pineset could not estimate the speed of the Chevrolet but was of the opinion it was traveling more than 45 miles per hour, judging by the sound of the “racing of the Chevrolet motor”.

Plaintiff’s version of the occurrence is that when he approached the intersection he stopped first before entering the intersection with the secondary road and then before entering the intersection with the northbound traffic lanes of Youree Drive Extension; that this action was repeated as he entered the space south of the neutral ground and as he approached the intersection with the southbound traffic lanes. That Carlson stopped before he entered the latter intersection was denied by Powell, who testified that Carlson was driving slowly across the highway and further slowed his vehicle on reaching the neutral ground, leading him to believe that he, Carlson, was going to stop.

Charles E. Murray and Gary Babb were also driving south on Youree Drive Extension about 50 yards behind the Powell Chevrolet. These two parties say they, as well as Powell, were traveling 35 to 40 miles per hour. They denied that plaintiff stopped before entering the aforesaid intersection but testified that plaintiff, on entering the intersection, accelerated his speed in an attempt to beat the Powell car across the intersection, at which time Powell applied his brakes as he went into a “panic stop”, explained as an emergency stop produced by a sudden application of brakes, locking the wheels of the vehicle. In the impact, the front of the-Powell car struck the right front side of the Jeep, both swerving to the right and coming to rest off the pavement at the southwest corner of the intersection.

Carlson’s testimony as to whether he looked to his right for approaching traffic is most inconclusive and unsatisfactory. He disclaims any recollection of seeing a car approaching from that direction. He recalls entering the intersection after he should have looked and made certain that he had an opportunity to negotiate the crossing without unreasonably obstructing the usual and normal traffic upon said through-highway. After reaching the intersection, he suffered, according to his testimony, a mental “blackout”, after which he claims to have known nothing until after the occurrence of the accident. Thus, upon a crucial point in the case, that is, whether or not he looked and made certain of his opportunity to negotiate the intersection before entering thereon, plaintiff has no recollection.

The proof in the record is entirely insufficient to justify a conclusion that young Powell was speeding or that he failed to keep a proper lookout. No other conclusion can be reached from the evidence other than that plaintiff failed to look to his right and observe the approach of traffic from that direction, particularly the Powell car and the car preceding it. The jurisprudence is too well settled to require citation of authority that plaintiff is charged with seeing what he should have seen. His responsibility is measured by the rules as if he had actually seen the approaching car. Notwithstanding, however, he projected his vehicle into the intersection without regard not only to the rights and safety of others hut without regard to those of his own. When an intersectional collision occurs between two motor vehicles and the operators thereof charge each other with negligence, there can be no recovery by the party instituting an action for damages as a result thereof if that party, by the exercise of due diligence and reasonable care, could have avoided the accident. Martin v. Adams, La.App., 88 So.2d 476; Kerschner v. Blache, La.App., 52 So.2d 749; Transcontinental Ins. Co. v. Toye Bros. Yellow Cab Co., La. App., 55 So.2d 585; Sullivan v. Locke, La.App., 73 So.2d 616.

We are of the opinion that the accident was caused entirely by the fault of plaintiff in failing to maintain a proper lookout and to accord to defendant’s car the right of way to which it was entitled. It was the duty of plaintiff to stop before entering the intersection with the southbound traffic lanes of the highway and await the passage of vehicles approaching the intersection at approximately the same time and permit them to proceed on their way. This plaintiff failed to do. When two vehicles approach an intersection at approximately the same time, the one having priority of right of way is entitled to proceed and it is culpable negligence for the other to attempt to cross. Belden v. Roberts, 3 La.App. 338; Arena v. Morris & Co., 14 La.App. 563, 130 So. 565.

• It was held in Simpson v. Pardue, 15 La.App. 341, 131 So. -854,. that the primary duty of avoiding ah ..intersectional collision rests upon the njotorist approaching on the less favored street. He is required- to -keep a lookout for vehicles on the favored street. He is also required to keep his car under control and to exercise a higher degree of care and caution than a driver on a favored street, who may be justified from the circumstances, as was plaintiff here, in assuming that the driver of a vehicle approaching an intersection from an inferior street would yield the right of way to a motorist using the favored street. Ciolina v. Patton, La.App., 148 So. 729. It was also held in Butler v. O’Neal, La.App., 26 So.2d 753, that when the negotiation of an intersection involves the passage across a favored thoroughfare the obligation of unusual care and caution upon the driver of vehicles on less favored thoroughfares should be enforced. See also Dixon v. Futch, La.App., 166 So. 205, and Williamson v. State Farm Mutual Automobile Ins. Co., La.App., 84 So.2d 243.

Plaintiff’s contention that he preempted the intersection is without merit. As was stated in Martin v. Adams, supra, the pre-emption of an intersection does not necessarily mean a mere prior entry in point of time or by a matter of a few feet ahead of another vehicle. To constitute a pre-emption an entry of an intersection must be made with the reasonable expectation on the part of the operator of a motor vehicle to clear the same without the obstruction of other vehicular traffic operating under normal and reasonable circumstances and conditions. Where an .entry is made under conditions and circumstances as to require emergency action on the part-of the drivers of other motor vehicles operating under normal conditions, such entry could not be said to constitute a pre-emption of the intersection. . ,

Plaintiff cites and relies upon Wilson v. Williams, La.App., 82 So.2d 71. That case is distinguishable from the present in that the driver of the vehicle on the favored street was proceeding at a reckless and excessive rate of speed. It was there held that plaintiff’s failure to see the oncoming traffic on the favored street did not constitute a proximate cause of the accident because inasmuch as, under the circumstances, had she seen its approach she would have been entitled to proceed into the intersection, which she would have had time to complete had the approaching car been operated at a reasonable and lawful speed. The defendant in the instant case was not shown to have been operating at an excessive rate of speed.

Neither do we find the case of Booth v. Columbia Casualty Co., 227 La. 932, 80 So. 2d 869, in point. There plaintiff first entered an intersection with a right of way street at a blind corner. Plaintiff’s car was in the middle of the intersection when it was struck by a garbage truck traveling at approximately 20 miles per hour. Under the facts of that case the plaintiff had preempted the intersection, and, accordingly, had the right to proceed under the well settled jurisprudence that an automobile which first enters and pre-empts an intersection has the right of way over an approaching automobile. There was no blind corner here or a question of prior preemption but a failure of plaintiff to keep a proper lookout, who, in spite of the approaching automobile, proceeded recklessly and without caution into the intersection in front of approaching traffic, which he saw or could have seen by the exercise of the slightest diligence.

Cooke v. Seegers, 17 La.App. 313, 136 So. 216, involved an accident on a dark, rainy night at the intersection of Wilkinson Street with Creswell Street in the City of Shreveport. Mrs. Cooke, the wife of plaintiff, was driving west on Wilkinson Street at a rate of 15 to 18 miles per hour. After proceeding two-thirds of the way across the intersection with Creswell Street, which was a right of way street, her vehicle was struck by the automobile of defendant. It was there held that plaintiff’s wife had successfully pre-empted the intersection and had reached a point where she had a legal right to be and where defendant’s automobile had no legal right to be; that she had already reached a place of safety in negotiating the intersection when the collision occurred. The facts were convincing that defendant’s automobile was moving at a very rapid rate of speed and that such contributed materially to the cause of the accident. We find the additional authorities cited by plaintiff neither applicable nor controlling.

Plaintiff next contends that this is a case for the application of the doctrine of the last clear chance. This doctrine, broadly stated, is that the negligence of a plaintiff does not preclude recovery of damages where it appears that the defendant, by the exercise of reasonable care and prudence, could have avoided injury to plaintiff, notwithstanding plaintiff’s own negligence. The theory is that the negligence of the plaintiff should not preclude him from recovery in those cases where the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of plaintiff’s negligence. The practical import of this principle is that a negligent defendant is held liable to a negligent plaintiff if the defendant, aware of plaintiff’s peril, or although unaware thereof, in the exercise of due care and prudence, should have been aware of it. These principles were thoroughly discussed in the cases of Rottman v. Beverly, 183 La. 947, 165 So. 153, and Jackson v. Cook, 189 La. 860, 181 So. 195, and have been invariably followed in subsequent cases where the facts so warranted. Deck v. Page, La.App., 77 So.2d 209; Prine v. Continental Southern Lines, Inc., La.App., 71 So.2d 716; Lawrence v. Sansone, La.App., 48 So.2d 281; Parker v. Home Indemnity Co. of New York, La.App., 41 So.2d 783.

This doctrine, however, cannot be applied except in cases where the defendant’s superior knowledge of plaintiff’s peril is coupled with defendant’s ability to avoid the accident and the consequent injury to plaintiff. Neither of these conditions is present in the instant case. The doctrine likewise has no application where plaintiff’s negligence, as we have found here, constituted the sole and proximate cause of the accident.

Finally, we conclude there was no manifest error in the judgment appealed. As was stated in Norman v. State, La.App., 69 So.2d 120, 131:

“It has become axiomatic that the findings of a trial judge on questions of fact will not be set aside nor disturbed by an appellate court in the absence of manifest error. The same principle is applicable to a consideration of the verdict of a jury. Consistent adherence to this rule is evidenced by a long line of cases.”

In this case, by unanimous verdict of the jury, judgment was rendered favorable to defendants. Our study and review of the voluminous record in this case brings us to the same conclusion. Not only do we fail to find manifest error but the record amply supports the conclusions reached. The judgment should, therefore, be affirmed.

For the reasons assigned, the judgment appealed is affirmed at appellant’s cost.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Woodrow JOHNSON, Plaintiff-Appellee, v. James H. HUNTER et al., Defendants-Appellant.
    No. 8528.
    Court of Appeal of Louisiana. Second Circuit.
    June 1956.

      Jackson B. Davis, Shreveport, for appellant.
    Joseph R. Bethard, Shreveport, for ap-pellee.
   AYRES, Judge.

Plaintiff instituted this action against James H. Hunter and L. E. Mayfield, the latter doing business as American Plumbing Company, to recover the sum of $2,030.-86, allegedly due in damages account of defective plumbing, or plumbing defectively installed and improperly functioning, in a residence purchased by plaintiff from defendant Hunter located on the premises at No. 830 Captain Shreve Drive, Shreveport, Louisiana, which residence the said Hunter constructed in the course of his business as building contractor and the plumbing in which was done by Mayfield under contract from Hunter.

An exception of no cause or right of action was filed on behalf of "Mayfield, predicated on the proposition that there was no privity of contract between plaintiff and that defendant. Thereafter, defendant Hunter filed an answer in which he sought to call L. E. Mayfield in warranty. To this call in warranty Mayfield again filed an exception of no cause or right of' action. Both exceptions were sustained. No judgment of dismissal, however, was signed and, consequently, no appeal was, or could be, taken from the action of the court in sustaining these exceptions.

After trial on the merits, judgment was rendered in favor of the plaintiff against the defendant Hunter for $630.86, with legal interest from judicial demand until paid, and for all costs, from which judgment the defendant prosecutes this suspensive and devolutive appeal. The plaintiff has answered the appeal and prayed that the judgment of the lower court be increased to the sum of $1,500.

While the sum' as originally claimed exceeds the jurisdictional maximum amount of this court, this claim is obviously exaggerated and may, and should, be disregarded in determining the amount in dispute for jurisdictional purposes. Brantley v. Tugwell, 223 La. 763, 66 So.2d 800; Maxfield v. Gulf States Utilities Co., Inc., 222 La. 987, 64 So.2d 243; Jackson v. Perkins, 221 La. 525, 59 So.2d 708; Mitchell v. Shreveport Laundries, 221 La. 686, 60 So.2d 86; Blanchard v. Brawley, La.App., 75 So.2d 891. For these reasons we have, therefore, assumed jurisdiction of this appeal.

The record discloses that plaintiff purchased the aforesaid residence from Hunter on March 4, 1954; that he and his family moved therein three days later, when he ascertained that neither of the commodes of the bathrooms connected with the front and middle bedrooms was properly functioning in that water would continue flowing after said commodes were flushed. On Monday, March 29, 1954, or two days after plaintiff’s occupation of said residence, plaintiff notified Hunter of the defects in said commodes and/or their installation and requested that necessary repairs be made. • Notwithstanding this notice and request, the repairs were not made. Subsequently, on April 2, 1954, one of the aforesaid commodes overflowed and flooded both the front and middle bedrooms, damaging the carpets on the floors to such an extent that they were unusable thereafter, although plaintiff attempted to minimize said damage and loss in procuring the services of a carpet cleaner, who removed and attempted to clean the carpets without success.

Defendant contends that when he sold plaintiff the said residence the plumbing facilities were in perfect working order, without defects whatsoever; that the cause of the overflow was due to an obstruction placed in the commode by plaintiff, his wife or some guest, and, except for said obstruction, the continuous running or flowing of water through said commode would not have overflowed and caused the damages sustained by plaintiff. Several days following the aforesaid overflow, an inspection was made of the sewer line extending from the residence to the city main. In excavating to reach said house service line, it was concluded, by seepage from the line and the filling of the ditch, that the line was stopped up. Whereupon, an opening in the line was made, out of which was taken a piece of gauze or other similar material, which defendant and his witnesses identified as a lady’s sanitary napkin, which they concluded had been placed in and flushed through said commode by some member or guest of plaintiff’s family.

That such may have occurred was not established. Plaintiff’s witnesses testified that it did not happen. Moreover, the testimony shows that after plaintiff had contracted to purchase said residence, the defendant continued to show it to other prospective purchasers in the anticipation that plaintiff possibly might not complete his purchase. The doors were left open, painters and other workmen had access to the house, and the prospective purchasers viewed and inspected the same.

The cause of the damage was the defective plumbing which resulted in the overflowing of the commode in the two bedrooms of the residence and over the carpets and padding. The defects or vices in the plumbing made their appearance almost immediately after plaintiff took possession of the house on the third day after he had closed the contract with the defendant for its purchase; indeed, the defects were ascertained on the very day plaintiff moved in. The real cause of the overflow which resulted in the damage complained of was due to the defects in the commodes themselves or to the manner in which they were installed, which defects resulted in the failure of the mechanism to automatically close the intake connection and shut off the water. Even with the sewer line obstructed, if the mechanism of the commodes had been properly functioning, the overflow would not have occurred at all, or, if to any extent, there would have been only a very limited quantity of water, which would have been confined to a very small area.

Although, as observed by the trial judge, this action was treated by the litigants primarily as an action for damages, in reality, it is an action of redhibition under LSA-C.C. Art. 2520 et seq., entitling plaintiff only to a diminution of the purchase price. Art. 2520 provides:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

The purchaser may limit his demand to a reduction of the price, as provided by Art. 2541, reading thus:

“Whether the defect in the thing sold be such as to render it useless and altogether unsuited to its purpose, or whether it be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price.”

As heretofore stated, Hunter is a building contractor and in that capacity constructed for his own account and for the purpose of sale the aforesaid residence. As such builder, he is presumed to have notice and knowledge of the aforesaid defects in its construction. In Templeman Bros. Lumber Co., Inc., v. Fairbanks, Morse & Co., 129 La. 983, 1000-1001, 57 So. 309, 315, with reference to the knowledge of the vendor as to the defects existing in machinery sold to plaintiff, it was stated:

“The vice in the present case consisted in the inadequacy of the gas producer, and in the defective installation of the machine. Of both of these defects the defendant must be held to have had full knowledge. The manufacturer of a machine is held to the knowledge of even latent defects (35 Cyc. 401); and the inadequacy of the gas producer must be held to have been patent to the defendant, though not to the plaintiff, since plaintiff was not supposed to have, and, in fact, had, no special knowledge of machinery. And the defendant must also be held to have known that the engine had been defectively installed. It was its duty to know it, and it had full opportunity to know it. It must, therefore, be presumed to have known it. Johnson v. Marx & Levy, 109 La. [1036] 1044, 34 So. 68.”

In Doyle v. Fuerst & Kraemer, Ltd., 129 La. 838, 56 So. 906, 907, 40 L.R.A..N.S., 480, the plaintiff sought damages for injuries due to poisoning from having eaten cakes and chocolate at defendant’s establishment. Defendant contended that, if plaintiff was poisoned, it was not guilty of any negligence and, therefore, not responsible. With reference to defendant’s knowledge of the facts, it was stated:

“The principle which governs in this case is that every one ought to know the qualities, good or bad, of the things which he fabricates in the exercise of the art, craft, or business of which he makes public profession, and that lack of such knowledge is imputed to him as a fault, which makes him liable to the purchasers of his fabrications for the damage resulting from the vices or defects thereof which he did not make known to them and which they were ignorant of.”

In discussing the knowledge of the vendor of a vice or defect of the thing sold, the Supreme Court, in George v. Shreveport Cotton Oil Co., 114 La. 498, 505, 38 So. 432, agreed with the doctrine announced in Kellogg Bridge Co. v. Hamilton, 110 U.S. 108, 3 S.Ct. 537, 28 L.Ed. 86, that a manufacturer who disposes of the things which he himself has manufactured can properly and legitimately be held presumptively to a knowledge of the qualities of the things he sells. Accordingly, that doctrine was applied in the George case.

In Tuminello v. Mawby, 220 La. 733, 57 So.2d 666, the plaintiff sought a diminution of the purchase price of a brick veneer dwelling purchased by him from the defendants due to defects in construction, primarily of the foundation, resulting in the cracking of the plastered walls, and, eventually, the brick walls, producing fissures, or a parting of the walls, to the extent that a man’s hand could be inserted therein and through which rain and wind came and daylight could be seen. The plaster fell and the interior deteriorated and became unsightly in appearance. Under the authority of LSA-C.C. Art. 2545, reading as follows,

“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and repayment of the expenses, is answerable to the buyer in damages”,

the court, after discussing the Doyle and George cases and referring to the French authorities, who had recognized the principle, held that the vendors of a brick dwelling were presumed to have had knowledge of the vice or defect in its construction since it was built and constructed by them.

We, therefore, conclude that Hunter had notice and knowledge, or, at least, had presumptive notice and knowledge, of the vices and defects of which plaintiff complained. There is no contention that such vices and defects were declared by him to the plaintiff as purchaser of the property.

The law applicable to plaintiff’s action is found in the articles of our LSA-Civil Code dealing with the obligations of the seller. Pursuant to Art. 2475 thereof, the seller is obliged to warrant the thing which he sells. The sale may be avoided under Art. 2520 thereof, quoted hereinabove, for some vice or defect in the thing sold which renders it absolutely useless or its use so inconvenient and imperfect that it might be supposed that the buyer would not have purchased it had he known of the vice. This action, however, will not lie for apparent defects, that is, such as the buyer might have discovered by simple inspection. LSA-C.C. Art. 2521. Ordinarily, the buyer who institutes such an action must prove that the vice existed before the sale was made to him. LSA-C.C. Art. 2530. The buyer, however, may limit his demand to an action for redüction of the price, as provided under LSA-C.C. Art. 2541, which is the nature of the action plaintiff instituted here. In the event the seller knew of the vice of the thing he sold and omitted to declare it, besides the restitution of the price and repayment of the expenses, he is answerable to the purchaser in damages. LSA-C.C. Art. 2545.

It is clear from the proof in this case that the damage complained of was caused by the defective commode and/or its installation. A proper installation would have included an inspection to determine that the mechanism would properly function and automatically shut off the flowing of the water through the intake pipe before the bowl overflowed. Whatever inspection was made, as contended by defendant, did not disclose the imperfection which caused the damage. Such inspection was, therefore, inadequate for the purpose or to forestall the event or calamity which followed. The commode was, therefore, not free of vices and defects at the time the house was sold to plaintiff by defendant.

In the case of Cipriano v. Superior Realty & Construction Corporation, 228 La. 1065, 84 So.2d 822, even though it was held that where the defendant did not construct the dwelling sold and alleged to have been damaged, the plaintiff was permitted to re-cover the amount alleged to have been necessary to make the repairs to the dwelling damaged by fire originating account of the defective installation of a heater. Plaintiff there was permitted to recover under the principle that he was entitled to a diminution of the purchase price by a sum established by the evidence necessary to repair said damage.

Accordingly, the conclusion is inescapable that defendant should respond to plaintiff for a sum adequate to repair the damages sustained. The items claimed are as follows:

(a) To replace the carpets and padding . $ 383.41
(b) Services rendered in cleaning the carpets. 112.45
(c) Embarrassment and humiliation . 1000.00
(d) Attorney’s fees. 500.00
(e) Replacing commode. 35.00

Of these several items the trial court allowed items (a), (b), (e), and $100 of (c), aggregating $630.86.

In support of his claim for attorney’s fees, plaintiff relies upon Smallpage v. Wagner & Wagner, La.App., 84 So.2d 863, and the authorities therein cited. Our appreciation of those cases leads us to the conclusion they are readily distinguishable from the case at bar. In the instant case, Hunter, as the builder of the residence purchased by plaintiff, is held to have had presumptive knowledge of the defects and vices existing in the plumbing fixtures which caused the damage for which compensation was. sought. In the cited case plaintiff relied upon the provisions of LSA-C.C. Art. 1934, providing for damages when a contract has been breached through fraud or bad faith. These elements are not shown to have existed here.

The author of the opinion in the Small-page case was also the organ of the court in Rodriguez v. Hudson, La.App., 79 So.2d 578, 580, wherein he stated:

“Insofar as the claim for the fee for prosecuting this suit is concerned, plaintiffs cannot recover as the jurisprudence is well established to the effect that a plaintiff as a rule is not entitled to collect his attorney’s fee from defendant merely for being successful except where the obligation to pay the fee is imposed by statute or stipulated for by contract. Winkler v. Ascension Bank & Trust Co., 182 La. 69, 161 So. 23.”

In our review and appreciation of the record, we find no manifest error in the judgment appealed. The award appears to be neither inadequate nor excessive. The judgment is, accordingly, affirmed at appellant’s cost.

Affirmed.


author: HARDY, Judge.

text:
    Earl R. SMITH, Plaintiff-Appellee, v. John A. MITCHELL, d/b/a Lincoln Builders, and Manufacturers Casualty Insurance Company, Defendants-Appellants.
    No. 8534.
    Court of Appeal of Louisiana. Second Circuit.
    June 14, 1956.
    Theus, Grisham, Davis & Leigh, Monroe, McBride & Goff, Ruston, for appellants.
    Dhu and Lea Thompson, Monroe, for ap-pellee.
   HARDY, Judge.

Plaintiff seeks by this suit to recover an award of compensation for alleged total and permanent disability against defendants, the employer and his insurer. After trial there was judgment in favor of plaintiff awarding compensation at the rate of $26 per week for a period not exceeding 400 weeks, subject to credits for compensation already paid, from which judgment defendants have appealed.

It is established, without dispute, that on or about May 4, 1955, while in the employ of John A. Mitchell, d/b/a Lincoln Builders, who carried a policy of workmen’s compensation insurance with the Manufacturer’s Casualty Insurance Company, plaintiff sustained an accident resulting in a double inguinal hernia. Concededly, plaintiff is considered to be permanently and totally disabled unless he chooses to procure surgical ■ correction and repair of the hernias. Herein lies the principal issue which is tendered by this appeal. Defendants have offered to assume the financial responsibility in connection with a surgical operation for the repair of the disability which plaintiff suffers by reason of his condition. Plaintiff refuses to undergo the necessary surgical operation for the repair of his condition, and, as a consequence, defendants urge that plaintiff has forfeited his right to a continuance of compensation. The only other facts in connection with this issue are that plaintiff was paid compensation at the rate of $26 per week up to date of November 7, 1955, at which time he was notified that no further compensation would be paid until and unless he agreed to submit to a corrective operation.

This court is confronted with the necessity for determining whether plaintiff should be ordered to submit to an operation or, in the event of his continued refusal, whether defendant should be relieved of liability for continuance of compensation payments. The proposition is not new and has been many times considered by the appellate courts of this State in one form or another, which observation, however, does not serve to eliminate the serious aspect and the far-reaching results of such judgment as may be rendered.

The most recent case in the jurisprudence of this State was that of Johnson v. United States Fidelity & Guaranty Company of Baltimore, 58 So.2d 261, decided by this court, after original hearing, on March 28, 1952; rehearing denied April 30, 1952, and writs refused by the Supreme Court June 2, 1952. After consideration of the able and detailed discussion of the proposition as contained in the opinion of Judge Gladney, who was the organ of this court, we think it is practically impossible to add any further comment which would be of substantial importance of material bearing upon the fundamental propositions.

However, it is pertinent to observe that we have had one occasion for consideration of this question since the disposition of the Johnson case. We refer to French v. Employers Mut. Liability Ins. Co. of Wisconsin, 70 So.2d 179, decided by this court on original hearing January 26, 1954; rehearing denied February 16, 1954. Following application for rehearing and denial thereof, plaintiff .applied to the Supreme Court for writs, and, on March 22, 1954, the Supreme Court granted a writ of certi-orari. We have not been notified of any further official action in connection with this case but, by reason of certain information derived from unofficial sources, we feel justified in assuming that this writ was recalled and vacated, following a compromise settlement between the parties litigant.

Our conclusion in the Johnson case, which must serve to support a similar conclusion in the instant matter, was adequately and succinctly expressed as follows [58 So.2d 266]:

“Perhaps the time will come when, as to a hernia operation upon an employee, we can say certainly there is no danger to life, the operation will be successful, the individual will be restored to useful employment, and he will be relieved of the burdens and uncertainties of an unrepaired hernia. Then, and not until then should we penalize the injured worker for refusal to submit to an operation. In such a case the facts will clearly indicate the unreasonableness and arbitrariness of the refusal.”

Because of the excellent and persuasive presentation which has been made by learned and diligent counsel for defendants, we think fairness requires us to declare that the facts in the instant case vastly preponderate against the reasonableness of plaintiff’s refusal to submit to an operation. The medical experts on the part of both plaintiff and defendants are in complete unanimity of opinion on the proposition that the plaintiff in this case is an excellent operative risk; that there is little, if any, danger of complications; and that the operative risk is practically nil. None of the doctors had any hesitancy in recommending surgical procedure and the element of risk was approximated, purely in the nature of a professional opinion, as being perhaps “one-half of one percent.” The testimony as to the probability of recurrence or of failure to obtain satisfactory results, which would restore plaintiff to his former ability to engage in manual labor, was equally favorable. In short, it would be difficult for us to conceive of a case in which the elements of risk would be as slight or could be more conclusively resolved as indicating the desirability of operative procedure.

The foregoing observations have been made because we think the one element which has been left open to doubt by the pronouncements of our courts involves the question as to whether, under any circumstances or conditions it is appropriate for a court to order an employee to submit himself to an operation for the repair of an inguinal hernia, under penalty of termination of compensation payments.

As pointed out in a discussion of this problem by Professor Malone in his work on Louisiana Workmen’s Compensation Law and Practice, Section 234, page 289:

“ * * * the courts have consistently refused to order a hernia operation. In some cases they have announced frankly that a hernia operation will not be ordered under any circumstance, but other decisions have left the way open for a proper case.”

In our opinion we are confronted in the instant case with a clear-cut proposition which requires us to answer this question:

Should a court order an employee to submit to a surgical operation for the repair of an inguinal hernia ?

The conclusion which we have reached, and which is hereinafter set forth, has been influenced by a number of factors. First, we observe that there is no statutory authority which serves either as a directive or a guide to a judicial decision on this point. But in this connection, we are impressed with the fact that by Act No. 85 of 1926 the Legislature of this State amended the Workmen’s Compensation Act, LSA-R.S. 23:1021 et seq., and, among other provisions, incorporated therein, Section 8(d), par. 17 certain detailed provisions which provided for termination of payment of compensation after a specified period of time in the event an employee refused to permit an operation for hernia. By Act No. 242 of 1928 the Legislature again amended the Workmen’s Compensation Statute and omitted from such amendment all of the statutory provisions with respect to the rights, as between employee and employer, resulting from hernia suffered by the employee.

We think this action of the Legislature must be considered to have a particular significance, for, to our minds, it very definitely justifies the conclusion that the Legislature was unwilling to continue the responsibility which it appeared to have assumed by the provisions of the Act of 1926. If the State Legislature by this action has clearly demonstrated its unwillingness to compel submission to a hernia operation, then it is only human for us to ask ourselves by what authority we are expected to assume and exercise such a responsibility.

The distinction between the instant case and the circumstances involved in the case of French v. Employers Mutual, cited supra, is clearly apparent and is demonstrated by the following quotations from the opinion of this court in the French case [70 So.2d 188] :

“The situation here is to be further distinguished from the situation in Johnson v. U. S. Fidelity & Guaranty Co., La.App., 58 So.2d 261 (which involved the question of an operation for a hernia) and all the cases involving abdominal operations, for the reason that in the case at bar, the operation involves only a limb, and it appears that any complication that might arise, if any, from an operation thereon could be more easily cmd more successfully dealt with and controlled than in an operation on the abdomen.
* * * * * ¡N
“We are convinced from all of the testimony in the case that plaintiff’s condition can be corrected, if not completely cured, by a relatively simple operation; that such an operation is in no sense dangerous to life, or attended by unusual risk, and is reasonably sure of success, and that plaintiff is under a duty to submit to such operation, without cost to him, and by an expert of his choice, in order to correct and relieve his existing disability and in order to restore himself to a state of usefulness to himself, his family, and society.” (Emphasis supplied.)

Thorough examination of the jurisprudence of this state involving the right of an employer to insist upon submission to an operation by ah employee, under penalty of discontinuance of compensation, indicates that our courts have been somewhat timid in coming to grips with the issue itself. In short, we have evaded the enunciation of a definite and unequivocal principle which could and would serve as an established precedent. The result has been to leave an area of indecision and uncertainty. Illus^ trative of this somewhat hesitant judicial approach to the problem and of the resulting vagueness and confusion, we point out the following conclusions which have been reached:

(1) In Bronson v. Harris Ice Cream Co., 150 La. 455, 90 So. 759, the Supreme Court in 1922 held that the refusal of plaintiff to submit to surgery on his knee was not unreasonable in consideration of his advanced age, the proposed administration of anaes-thetic, and the fact that the procedure was classified as a major operation. Notwithstanding this conclusion, the court indicated that refusal to submit to simple operations, unattended by risk, might be considered, in future, as justifying termination of compensation.

(2) Operations of a relatively minor nature have been ordered by our courts subject to the alternative termination of compensation. Smith v. Butler, 1927, 7 La.App. 338; Leday v. Lake Charles Pipe & Supply Co,, La.App.1939, 185 So. 655; Powers v. Allied Chemical & Dye Corporation, La.App.1950, 46 So.2d 332; Fredieu v. Mansfield Hardwood Lumber Co., La. App.1951, 53 So.2d 170; French v. Employers Mutual Liability Ins. Company of Wisconsin, 1954, cited and commented upon supra.

(3) In numerous considerations of proposed operations for the repair of hernias it is important to note that- none of our appellate tribunals have consented to order an employee to submit to such surgical procedure. As noted in Professor Malone’s work, cited supra, the courts in some cases have announced that they will not order such an operation under any circumstances, and in other cases the question has been left open.

(4)Finally, it is obvious that some of our courts, ours being one, have chosen to pitch their refusal to order an operation upon the facts of a given case, but have indicated a somewhat equivocal position with respect to cases which might develop in future. Particularly there have been' frequent references in the opinions of the courts, by way of somewhat vague generalizations, to a rule of reason. In other words, it has been implied, if not actually expressed, that an operation very probably would be ordered if it should be shown in any given case that the employee’s refusal was “arbitrary or unreasonable.”

We think the time has come for, and we are here confronted with a factual situation which demands, a definite expression of a principle, with reference to hernia operations, which will be observed in future.

We concede, as we have above noted, the clearly established facts of the instant case which would persuade any reasonable man that the risk of operative procedure is almost non-existent. But in- our hearts we know that some degree of risk, slight though it is, yet remains. Though this risk should be only one in 1,000 chances instead of one in 100 or 200, as is indicated by the testimony in this case, we, nevertheless, cannot conceive it to be our duty to order such an assumption of risk. We deal here not alone with matters of dollars and cents, but with the matter of life or death. While we are firmly convinced that the almost certainly beneficial results to plaintiff in the instant case far outweigh the attendant remote danger, this is a decision which he must make for himself, and we are unwilling to substitute our judgment and thereby become the agents of compulsion.

For these reasons we have reached the conclusion that we are without authority, either by statute or by judicial precedent, to grant the relief which is sought by defendants.

The one remaining issue involved in the instant case concerns the basis of plaintiff’s wages and the consequent amount of weekly compensation to which he is entitled. By an answer to the appeal, plaintiff prays for an increase in the amount. On behalf of plaintiff it is urged that he is entitled to have his rate of pay determined upon the basis of a six-day week of eight hours per day rather than a five-day week of eight hours per day which was accepted by the district court. There is no dispute as to plaintiff’s rate of pay of $1 per hour, which apparently was fixed by agreement between employer and employee without an additional overtime rate, no matter how many hours per week plaintiff actually worked. Plaintiff testified that he worked on Saturday most of the time and worked “eight hours a day mostly.” On behalf of defendant employer it was testified that plaintiff worked regularly five days per week and that his employment on Saturdays did not occur more than once a month. Payroll records for 1954 and a portion of 1955 were filed in evidence on behalf of defendants. Unfortunately these records, as is so often the case with reference to day laborers, do not reflect any consistency of employment over a period of weeks. The identical question which is here concerned with reference to fixing the basis for compensation arose in the case of Carrington v. Consolidated Underwriters, La.App., 80 So.2d 427, in which we found that plaintiff’s work record was consistent with a regular period of employment based upon a five-day week of eight hours per day, despite the fact that he occasionally worked on Saturdays. In the cited case, as here, plaintiff was not employed on the basis of a six-day week, and, because the extra hours of employment were of almost negligible importance, we based our allowance upon a five-day, forty-hour week. Writs were granted by the Supreme Court and we are informed that the case has recently been decided, but, in view of the fact that we have not had the opportunity to read the opinion, we do not know that the conclusion reached by the Supreme Court on this particular point differs from our holding in the Carrington case. It follows that, at least until more fully informed as to any change, we must adhere to the law on this point as we have heretofore construed it.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.


text:
    Charles MARTIN, Jr., Plaintiff-Appellant, v. Elmer Haney ADAMS et al., Defendants-Appellees.
    No. 8513.
    Court of Appeal of Louisiana. Second Circuit.
    June 14, 1956.

      Love & Rigby, Shreveport, for appellant.
    Lunn, Irion, Switzer, Trichel- & Johnson, Shreveport, for appellees.
   AYRES, Judge.

Plaintiff instituted this action for damages for personal injuries and property damage allegedly sustained in an automobile accident occurring at the intersection of Atkins and Wheless Streets in the City of Shreveport, Louisiana. Plaintiff, who was alone in his Nash automobile, was driving west on Atkins Street and collided with the Ford automobile of the defendant, Adams, who, as the driver, accompanied by his wife and infant child, was traveling north on Wheless Street.

Plaintiff charged defendant with negligence in a number of specified particulars, principal among which were the charges that defendant failed to yield the right of way to which plaintiff claimed priority account of his approach of the intersection to defendant’s right and to which plaintiff claims to have pre-empted by prior entrance, and that defendant was not keeping a proper lookout..

Counter charges of negligence were made against plaintiff in his failure to yield the right of way to defendant, who had allegedly already entered and pre-empted said intersection, by plaintiff’s excessive speed, failure to keep a proper lookout or to keep his automobile under control. Contributory negligence was, in the alternative, plead in the aforesaid respects against plaintiff.

From a judgment in accordance with a jury verdict rejecting his demands, plaintiff prosecutes this appeal.

The scene of the accident occurring at the intersection of Wheless and Atkins Streets may be first described. Wheless Street runs north and south and is 28 feet wide. Atkins Street, 24 feet wide, runs north and south and intersects Wheless Street at right angles. This intersection was described by the police officers as an equal or uncontrolled intersection in that no signal lights, traffic controls or stop signs governed or controlled traffic at the intersection.

The facts of the occurrence of the accident in the northeast quadrant of the street intersection may next be stated. Plaintiff’s ■Nash struck defendant’s Ford broadside, the front end of the Nash striking the Ford near the Ford’s right-hand door. The Nash automobile continued across and 'beyond the street a distance of 57 feet, pushing the Ford; both came to a rest on a lawn in the northwest corner of the intersection. Both cars skidded approximately 12 feet prior to the impact. The testimony fails to establish that either car was exceeding the speed limit at the time of the collision. Plaintiff approached the intersection downgrade on Atkins Street. Proceeding from a half block east of the intersection where he had stopped, plaintiff continued towards the intersection with his foot on the brake. On reaching the intersection he says he looked first to his left, the direction from which the defendant was approaching, and there were no cars in sight, and then, after looking to the right and observing no traffic from that direction, he proceeded towards the intersection, when, on reaching a point where pedestrians crossed Atkins Street on the east side of Wheless, he observed defendant’s car approaching about a car length south of the intersection. Notwithstanding, however, he proceeded into the intersection where the accident occurred, as aforesaid, in the northeast corner thereof. Defendant Adams testified that he saw the Nash only one or two seconds before the impact and then only 10 to 12 feet away; that his attention was directed to the approach of plaintiff’s automobile by his wife’s “yell” and warning to him.

Neither driver saw the approach of the other vehicle until momentarily before the impact. There is no reason advanced why either should not have seen the other, had he been looking and keeping a proper lookout. Whatever the operator of a motor vehicle can see by the exercise of reasonable diligence, he must see, and, in legal contemplation, he is charged with seeing. His failure to see what he could have seen by the exercise of due diligence does not absolve him from liability. Sullivan v. Locke, La.App., 73 So.2d 616.

It is the contention of 'both plaintiff and defendant that each had the right of way and that each in making a prior entry into the intersection had pre-empted the same. There was certainly no preemption of the intersection by plaintiff. We are convinced .that defendant entered the intersection first. He traveled a considerably greater distance into the intersection than did plaintiff. Defendant should have been aware of plaintiff’s entry into the intersection when he himself made his entry therein. The pre-emption of an intersection does not necessarily mean a mere prior entrance in point of time or by a matter of a few feet ahead of another vehicle. An entry of an intersection to constitute a pre-emption must be made with the reasonable expectation of the operation of a motor vehicle to clear the same without obstruction of other vehicular traffic operating under normal and reasonable circumstances and conditions. Such entry must be made under such circumstances as not to require an emergency stop by other traffic in order to prevent an accident. Butler v. O’Neal, La.App., 26 So.2d 753; Aucoin v. Houston Fire & Casualty Co., La.App., 44 So.2d 127; Hardware Mut. Cas. Co. v. Abadie, La.App., 51 So.2d 664; Thibodaux v. Willet, La. App., 70 So.2d 728; Dodd v. Bass, La.App., 76 So.2d 572; Mansfield v. Toye Bros. Yellow Cab Co., La.App., 78 So.2d 544. Nevertheless, plaintiff contends, as aforesaid, that he had a superior right of way by virtue of his approach of the intersection to defendant’s right. LSA-R.S. 32:-237. It is true, of course, that plaintiff was approaching the intersection to defendant’s right. Even when one has the right of way he is not relieved from the necessity of looking into the direction from which others may be expected to come, and where such care would, as is the case here, have prevented the accident, he who fails to look or to keep a proper lookout cannot recover, even though the other party was grossly at fault. Johnson v. Item Co., 10 La.App. 671, 121 So. 369. Motorists having a right of way at an intersection are not to be relieved of the duty of maintaining an adequate lookout. Sullivan v. Locke, supra; Holderith v. Zilbermann, La.App., 151 So. 670; Murphy v. Star Checker Cab, Inc., La.App., 150 So. 79; Pugh v. Hen-ritzy, La.App., 151 So. 668; Johnson v. Item Co., supra; Hamilton v. Lee, La.App., 144 So. 249; New Hampshire Fire Ins. Co. v. Bush, La.App., 68 So.2d 254. The superior privilege or right of way does not confer a license to disregard the fundamental rules instituted for the protection and safety of persons motoring on the highways, among which is the important rule of maintaining a proper lookout. Prudhomme v. Continental Casualty Co., La.App., 169 So. 147. When an intersectional collision occurs between two motor vehicles and the operators thereof charge each other with negligence, there can be no recovery by the party instituting an action for damages as a result thereof if that party, by the exercise of due diligence and reasonable care, could have avoided the accident. Kerschner v. Blache, La.App., 52 So.2d 749; Transcontinental Ins. Co. v. Toye Bros. Yellow Cab Co., La.App., 55 So.2d 585; Sullivan v. Locke, supra.

In Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292, 294, it was stated:

“It can not and will not be disputed that a motorist, who recklessly and without exercising some degree of caution enters an intersection on a favorable light, is not free from negligence if he collides with another motorist who enters an intersection on an unfavorable light. And it can not and will not be disputed that a motorist can not, in the face of imminent danger, rely upon the right of way accorded him by law.”

An important purpose of the installation of automatic traffic control systems at street intersections is to minimize the dangers inherent at those locations. It is a matter of common knowledge and is self-evident that greater danger exists at an intersection where traffic is not so controlled than where controlled. The greater the danger, the greater the care and caution are required and exacted. Such was the condition at this intersection at the time of the accident. Under the circumstances, as related here-inabove, it is evident that neither driver was maintaining or keeping a proper lookout; that both were grossly negligent in that respect in entering the intersection without due regard for the approach of the other. Had plaintiff been keeping a proper lookout, he could have seen the other approaching vehicle and taken precautions to have avoided the accident, which he had an opportunity to do and which, in all probability, at his rate of speed, he could have done. To say the least, plaintiff was guilty of contributory negligence, which bars his recovery. Sullivan v. Locke, supra; General Exchange Ins. Corporation v. Carp, La.App., 176 So. 145; Comeaux v. Blanchet, La.App., 69 So.2d 527; Wyche v. Brian, La.App., 28 So.2d 143.

' Manifest error in the judgment appealed, has not been pointed out and our own re-' view of the record fails to disclose any such error. Accordingly, the judgment appealed is affirmed at appellant’s cost.

Affirmed.


author: GLADNEY, Judge.

text:
    Kelly BRYANT, Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY, Defendant-Appellant.
    No. 8518.
    Court of Appeal of Louisiana. Second Circuit.
    June 14, 1956.

      Joseph R. Bethard, Shreveport, for appellant.
    Browne, Browne & Bodenheimer, Shreveport, for appellee.
   GLADNEY, Judge.

This action is for property damages sustained by plaintiff’s Buick automobile as it was parked alongside the curb on Barks-dale Boulevard in Bossier City, Louisiana, when struck by a Ford car driven by Ronnie Powell, and which had sideswiped a truck owned by the Atlas Sheet Metal Works, the defendant’s insured. After trial judgment was rendered in favor of plaintiff in the sum of $260.27, from which judgment the defendant has appealed and plaintiff has answered the appeal asking the award be increased to the sum of $359.40.

The record shows that on August 11, 1955, about 2:00 o’clock P.M., at which time it was raining, plaintiff’s vehicle was parked in the 1500 block in close proximity to Bud & Bob’s Motor Shop; and that a truck owned by the Atlas Sheet Metal Works, the insured of defendant, and driven by Orval F. Baggs, pulled out from Bud and Bob’s Motor Shop, crossed the two south lanes of the four lane thoroughfare and proceeded to make a left turn to the east. During this turning movement the truck was struck near the center of the north two lanes of -Barksdale Boulevard. Just prior to the collision Powell was proceeding east and as a result of the impact his automobile went forward to strike plaintiff’s car and from that point moved an additional distance of about fifty feet.

There appears to be no serious conflict as to the salient facts. Plaintiff was not present and, of course, did not see his car struck by the Ford automobile. Testimony as to the occurrence of the accident was given by Ronnie Powell, a young man of sixteen years and Baggs, the driver of the truck. Baggs related he came out of Bud & Bob’s Motor Shop and upon reaching the south curb, looked both ways to see if any traffic was coming. He said he saw the Powell car coming down the road from his right, and thought he had plenty of time to safely make the crossing, but when the front wheels of his truck "were straddle of the middle line”, he observed the Powell car had gotten too close. The following colloquy occurred between plaintiff’s counsel and the witness:

“Q. The sum and substance of this thing is that you started out, thought you could make it, and you just made a mistake and couldn’t make it; that is all that happened, isn’t it? A. That is right.”

It would thus seem clear that the driver of the truck wholly misjudged the distance and speed of the Ford and attempted to complete the turning movement when it was unsafe to do so. His explanation is that the Ford automobile was traveling at about fifty miles per hour. This statement is not established as a fact and is positively denied by young Powell, who declared he was traveling not more than twenty-five miles per hour when the truck suddenly blocked the lane of traffic ahead of him, compelling him to apply the brakes of his car on the wet and slippery pavement.

The evidence, we find, conclusively demonstrates the negligence of Baggs which consisted of entering the north side of Barksdale Boulevard from a private driveway and attempting a left turn in the face of oncoming traffic when it was unsafe to do so. The motor vehicle traffc regulatory statute especially provides that a driver entering a public highway from a private way, shall yield to all vehicles approaching on the public highway. LSA-R.S. 32:237, subd. E. It was incumbent upon Baggs, faced with the existing conditions, to have been more closely observant. The negligence of Baggs, therefore, was a proximate cause of the damage sustained by plaintiff’s vehicle. It is of no concern that Powell also may have been negligent.

During the course of trial, counsel for appellant vigorously objected when the court permitted counsel for plaintiff to call for cross-examination the witness Baggs under the provisions of LSA-R.S. 13:3663. The record discloses, however, that when the same witness was called on behalf of the defense, he gave exactly the same testimony which had previously been objected to, and, therefore, if there was error, it was in no wise prejudicial.

It is seriously contended by appellant the trial court erred in its allowance of damages. The appellee is likewise displeased with his award and has answered the appeal for the purpose of having the quantum increased. Appellant argues that since plaintiff’s automobile had not been repaired at the time of trial, the lowest reasonable estimate should have been accepted by the trial judge as the best evidence of actual damage sustained. Appellee, on the other hand, takes the position that his home was in Hope, Arkansas, and it would have resulted in additional expense to him to be without his car for several days while it was being repaired in Shreveport. He, therefore, furnished two* estimates of repair costs from garages in Hope, Arkansas, the lowest of which was used as a basis for the judgment of the court. Guy Harrell, an independent appraiser, shortly after the accident, accompanied plaintiff to the Morris Buick Company where one of its representatives, in the presence of plaintiff and Harrell, made a detailed estimate as to the cost of restoring plaintiff’s automobile to its condition just prior to the collision. This estimate in the sum of $184.46 was produced and filed in the record and is substantially under that upon which the judgment of the court was based.

We are forced to the conclusion that the estimate of Morris Buick Company should form the basis for determining recoverable damages. When the damage to an automobile falls short of its loss and destruction, the measure of damages for an injury thereto is the difference between its value at the place immediately before and immediately after the injury; or, if the sum be less, the reasonable cost of repairs to restore the property to its former condition. See: 25 C.J.S. Verbo Damages, § 83, p. 597. In Christian v. Martin, La.App.1949, 38 So.2d 181-193, where the automobile had not been repaired at the time of trial, the court accepted the lowest of three estimates as proper evidence of the damages to be adjudicated. These authorities are pertinent to the isues herein involved, and we think the trial court erred in not accepting the lowest of the estimates, that of the Buick company.

The trial court refused to accept as properly supported by evidence, claims for damages to a camera which was in the automobile at the time of the collision and repairs to the front end of the automobile which plaintiff testified amounted to $13.31. The court also disallowed long distance telephone calls which plaintiff testified were necessary to cancel business engagements and likewise refused to award damages for loss of earnings amounting to $60 allegedly caused by loss of time from work. None of these items were substantiated by evidence other than the testimony of plaintiff himself. Defendant’s answer expressly denied the correctness of these items which were alleged upon in paragraphs 6, 7, 8 and 9 of plaintiff’s petition, and the effect of such denial is to require strict proof as to the correctness of each item. Plaintiff did not furnish such evidence, and, therefore, the items were properly omitted from the judgment.

As a result of the conclusions herein-above set forth, the judgment from which appealed is amended by reducing the principal sum to $184.46 and as so amended, is affirmed at appellant’s cost.


author: REGAN, Judge.

text:
    Artealia STOVALL, wife of Frank Stovall and Frank Stovall, v. Joshua WASHINGTON, Joseph LaMarca and The General Insurance Corporation of Fort Worth.
    No. 20633.
    Court of Appeal of Louisiana. Orleans.
    June 25, 1956.
    Ogden & Woods, Charlton B. Ogden, II, New Orleans, for plaintiffs-appellants.
    Bienvenu & Culver, New Orleans, for defendants-appellees.
   REGAN, Judge.

Plaintiffs, Frank Stovall and his wife, Artealia Stovall, a guest passenger in an automobile owned and operated by Joshua Washington, instituted this suit against the defendants, Joshua Washington, Joseph LaMarca and the latter’s insurer, the General Insurance Corporation of Fort Worth, endeavoring to recover the sum of $13,-186.50, representing damages for the personal injuries suffered by Artealia Stovall and for expenses incidental thereto incurred by Stovall as the result of an accident which occurred in the intersection of Napoleon and S. Claiborne Avenues in the City of New Orleans on May 21, 1953, at about 5:00 p. m., when Washington’s automobile collided with the vehicle owned by Joseph LaMarca, which was operated by his minor daughter, Lorraine La-Marca.

The Board of Administrators of the Charity Hospital of Louisiana at New Orleans intervened claiming the sum of $130.-50 for medical services rendered to Ar-tealia Stovall in consequence of this accident.

Defendant Washington answered and admitted the occurrence of the accident, but denied liability therefor.

Defendants, Joseph LaMarca and his insurer, answered and denied that Lorraine LaMarca was guilty of any negligence in the premises and, in the alternative, pleaded the independent contributory negligence of Artealia Stovall in that she was an occupant of the automobile of Joshua Washington, which was moving at an excessive .rate of speed and entered the intersection against the red semaphore signal light and drove directly, into the path of the LaMarca vehicle, both of which she could or should have seen in sufficient time to caution Washington had she been maintaining a careful lookout.

There was judgment in the lower court against defendant Joshua Washington and in favor of Artealia Stovall, Frank Stovall and the Board of Administrators of the Charity Hospital of Louisiana at New Orleans, intervenor, in the respective sums of $7,500, $106 and $130.50 together with 10% attorney’s fees on the latter sum. There was further judgment in favor of defendants, Joseph LaMarca and the General Insurance Corporation of Fort Worth and against the plaintiffs, Artealia and Frank Stovall and the intervenor, Board of Administrators of the Charity Hospital of Louisiana at New Orleans, dismissing their suits. Plaintiffs have prosecuted this appeal from that part of the judgment dismissing their suit against Joseph LaMarca and the General Accident Corporation of Fort Worth.

Joshua Washington did not prosecute an appeal from the unfavorable judgment which was rendered against him.

The record reveals relatively simple facts. The defendant, Joshua Washington, was operating his automobile in the inbound roadway of S. Claiborne Avenue moving at a speed of between thirty and forty miles per hour in the general direction of Canal Street when he became involved in an accident in the intersection of Claiborne and Napoleon Avenue with an automobile operated by Lorraine La-Marca, who was driving in the center traffic lane of Napoleon Avenue in the general direction of Lake Pontchartrain. Plaintiff, Artealia Stovall, a guest passenger in the vehicle operated by Washington was sleeping when the accident occurred and was thrown from the car into the roadway as a result of the collision and suffered multiple injuries.

There is conflicting testimony in the record as to whether Washington crossed the uptown river intersection of Claibbrne and Napoleon Avenues on an amber or a red semaphore signal light, but a careful examination of the record leads us to the inevitable conclusion that he entered that intersection when the semaphore signal light regulating traffic in Claiborne Avenue was red.

Lorraine LaMarca had stopped at the intersection in obedience to an unfavorable semaphore signal light regulating traffic moving in Napoleon Avenue. Her vehicle, as we said, occupied the center lane of Napoleon Avenue and a truck was on her left in the lane nearest the neutral ground. The truck completely obstructed her vision to the left and, therefore, made it impossible for her to observe traffic emanating therefrom and moving in a downtown direction in S. Claiborne Avenue. The truck and the LaMarca vehicle remained stationary until the traffic light changed to green which invited them to proceed; they drove into the Claiborne Avenue roadway simultaneously, the truck suddenly stopped and the LaMarca automobile moved about a foot or two beyond the front of the truck when it collided with the Washington automobile which, as we have related, was traveling at a fast rate of speed and which entered the intersection on a red traffic semaphore signal light.

The most credible and disinterested witnesses who appeared at the trial hereof confirmed the foregoing facts.

The record unequivocally substantiates the conclusion that the defendant, Joshua Washington, was guilty of negligence in entering the intersection on an unfavorable or red traffic signal light, therefore, the only question posed for our consideration by virtue of the foregoing factual revelation is whether Lorraine LaMarca was guilty of contributory negligence in entering the intersection a second or two after the semaphore signal light changed to green when her vision to her left was obstructed by the truck.

We have expressed the opinion on several other occasions that it is not en-cumbent upon a motorist placed in the position in which Lorraine LaMarca found herself to stop her vehicle and to peer cautiously around a visual obstruction to ascertain whether or not motorists proceeding in an intersecting roadway would obey an unfavorable traffic signal light.

In the case of Lewis v. Groetsch, La. App., 32 So.2d 396, 399, which, in our opinion, is quite analogous, the plaintiff’s vehicle was struck by the defendants’ truck as plaintiff attempted to cross the intersection of Louisiana and St. Charles Avenues. There was a semaphore signal light in plaintiff’s favor, but his view into Louisiana Avenue was obstructed by a stationary trolley car. Defendants pleaded the contributory negligence of plaintiff in that plaintiff failed to keep a proper lookout and blindly entered the intersection when his vision was thus obscured. In rendering judgment for plaintiff this court took full cognizance of the rule prohibiting a motorist from entering an intersection blindly, even though the semaphore signal light was in his favor, but qualified that rule with the following reason:

“Still, in view of the positive testimony found in the record, we must conclude * * * that when Lewis (plaintiff) entered the intersection the light facing him had been green for a reasonable time. If so, then the truck must have entered after the light facing it had turned to red, and it fol- . lows that there had elapsed a sufficient time for the clearance of the crossing by any vehicle which may have entered it on a favorable light. It follows also that since plaintiff’s view was obstructed, he was not at fault in failing to see that the truck was about to dash across in front of him. In entering the intersection at a reasonable speed several seconds after the light had become favorable, plaintiff did all that the dictates of prudence required of him.”

In reaching this conclusion we rationalized thus:

“We think that if between the time in which the light became favorable to plaintiff and the time at which he entered the intersection there had elapsed sufficient time for the complete clearing of the crossing by any vehicle which may have been Caught in the intersection by the changing light, 'then Lewis was justified in assuming that there was no other car in the intersection because there was no reason for him to anticipate that some other driver would enter the intersection after the light had changed to red. Had the streetcar not blocked plaintiff’s vision to his left, it is possible that we would feel that he should have noticed the truck even though it may have entered in the face of an 'tinfa-vorable light, but since his view was blocked his failure to see the on-coming truck was not negligence on his part.”

In Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292, 294, the Supreme Court reasoned:

“It can not and will not be disputed that a motorist, who recklessly and without exercising some degree of caution enters an intersection on a favorable light, is not free from negligence if he collides with another motorist who enters an intersection on an unfavorable light. And it can not and will not be disputed that a motorist can not, in the face of imminent danger, rely upon the right of way accorded him by law. But it also can not be disputed that under the traffic light system a motorist, who is proceeding on a proper signal, should not be held to the same degree of care and vigilance as if no such system prevailed. He has the right to assume that the signals are understood and will be observed and he is not, required to anticipate that pedestrians or other motorists will, in violation of law, enter a crossing on a wrong signal. The danger at such crossing is less than, if there were no such signals and therefore less care is exacted.”

In our opinion the evidence contained in the record overwhelmingly preponderates in favor of Lorraine LaMarca to the effect that she entered the intersection on a favorable light at a reasonable starting speed one or two seconds after the light had turned to green and that the proximate cause of the accident was Joshua Washington’s negligent entrance into the intersection in violation of an unfavorable semaphore signal at an excessive rate of speed.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

JANVIER, J., absent, takes no part.


text:
    Mrs. Lettafaye M. TAYLOR, Plaintiff-Appellee, v. The ADMINISTRATOR OF the DIVISION OF EMPLOYMENT SECURITY OF the DEPARTMENT OF LABOR OF the State of LOUISIANA, Defendant-Appellant.
    No. 8526.
    Court of Appeal of Louisiana. Second Circuit.
    June 14, 1956.
    Lewis D. Dunbar, Baton Rouge, for appellant.
    Ford E. Stinson, Benton, for appellee.
   AYRES, Judge.

The Administrator of the Division of Employment Security of the Department of Labor of the State of Louisiana has appealed from a judgment of the Twenty-Sixth Judicial District Court in and for Bossier Parish, Louisiana, reversing the decision of the Board of Review, wherein it was held that plaintiff was not available for work within the contemplation of the Louisiana Employment Security Law, LSA-R.S. 23:1471 et seq., and, therefore, was not entitled to unemployment compensation. The judgment appealed affirmatively decreed plaintiff entitled to such benefits.

The Louisiana Board of Review, in reaching its decision, stated:

“An examination of the evidence before the Board, clearly shows that the claimant has not continued to comply with the eligibility requirements of the Act, insofar as her availability is concerned. According to claimant’s own statement, she does not have any one to care for her child, and that she can only perform work at a certain timé during the day. Neither does she have transportation facilities. The claimant’s employability is restricted to such an extent that she cannot be considered available for work within the meaning of the Act.”

It is urged that this finding is supported by evidence in the record and is, therefore, conclusive and the court is precluded from a contrary finding, as in such instances its jurisdiction is confined to questions of law. In that connection, the pertinent portion of LSA-Revised Statutes 23:1634 reads as follows :

“In any proceeding under this Section the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.”

The authority of the trial court and of this court on appeal is limited, therefore, solely to the proposition as to whether the decision of the Board of Review was supported by evidence. Stroy v. Heard, La. App., 85 So.2d 275. No additional evidence is permitted m a hearing in the trial court. The review is, therefore, limited to such evidence as may be contained in the record as reviewed by the Board of Review. For determination of the issues here presented, a review of the evidence as contained in such record is necessary.

In plaintiff’s application for benefits under the statute, we find this statement:

“I have no one to care for my children so I can only accept a job working from 8:30 a. m. to 3:00 p. m.”

Standing alone and without explanation, this, of course, would tend to support the Tuling of the Board. However, in making explanation thereof in her notice of appeal to the Appeals Referee, plaintiff made this statement:

“I can arrange care for my children and can also arrange transportation for full-time work. This condition existed when I filed my initial claim also. My full statement was 8:30 to 3:00 p. m. were best hours because of the children but I could get a high school girl after school, if necessary. It is true I had no transportation arranged but that is because I could not make arrangements until I knew what hours I would work.
A number of persons commute from my area and I can arrange transportation as needed.”

In the hearing before the Appeals Referee, plaintiff gave this testimony:

“Referee: Mrs. Taylor, the records indicate that you filed a claim on January 22, 1954, and at that time you stated, T have no one to care for my children so I can only accept a j ob working from 8:30 a. m. to 3:00 p. m.’ You were held ineligible for benefits and you’ve made an appeal. Now, I want you to tell me in your own words just how you have overcome that you had to be with your children. I mean just what have you done to make yourself available after 3 :00 p. m. * * * of the normal work hours.
“Claimant: Well, I could always get a high school girl to keep my children. About those hours, they asked me what would be my best hours to work.
“Referee: I don’t think they ask you the best hours because—
“Claimant: What hours I could take because—
“Referee: They asked you what hours you could work probably.
“Claimant: And I didn’t say I couldn’t because I’ve always had someone to keep the kids if necessary.
“Referee: Well, what have you done about getting work?
“Claimant: Well, I have in my application in different places.
"Referee: Where are some of the places that you have applications in?
“Claimant: Well, I have one at Couch Motor Lines and * * *, Texas.
“Referee: Now, how would you get to and from work?
“Claimant: Well, that isn’t a problem at all from out there because there’s a bus service, there’s a lot of people from out there working here. In fact, I have my own car. Transportation is no problem for me.
“Referee: Well, on February 13, 1954, there seems to be something brought up about your transportation, that’s why I asked you the question.
“Claimant: All I remember ever recall being out there I asked about transportation. They asked me did I have transportation arranged, I said ‘No, but I can get transportation.’ I’ve always been able to have transportation.
“Referee: You have your application in with various motor transport lines here in town?
“Claimant: That’s right.
“Referee: What type work do you ordinarily do ?
“Claimant: Well, I can do most anything I was trained for. They do their own training as far as hiring a girl.
“Referee: Do you have experience with the motor freight lines?
“Claimant: No, but you don’t have to have it.
“Referee: Has the office offered you any work?
“Claimant: No. Not recently.
“Referee: Have you ever done any clerical' work at all ?
“Claimant: In stores ?
“Referee: No, clerical work. Office work..
“Claimant: I worked for the superintendent of school when I went to school — a year afterwards.
“Referee: Well, now, the work with these motor transport companies would be of a clerical nature, wouldn’t it?
“Claimant: Some of it is, but they don’t hire altogether. They do some of course, but they don’t hire experienced girls altogether.
“Referee: Have you made any effort to get work as a sales clerk?
“Claimant: I have my application in at Sears.
“Referee: Approximately how many applications do you have in?
“Claimant: Four, I believe.
“Referee: Well, that’s all the questions I have to ask you, do you have anything further that you would like to give to the record?
“Claimant: No, I don’t guess,”

This testimony of the claimant constitutes the entire evidence in the record. No effort was made to impeach the witness or to discredit her testimony. Interpreting this testimony, the Appeals Referee stated:

“After being duly sworn the claimant testified that the office had misunderstood her statement in that she stated she preferred to work 8:30 to 3:00 P.M. as these were the best hours for her to work and be able to look after her children. However, she is able to have someone care for her children should she be able to get work on the normal work hours. She has transportation to and from work. Since filing her claim, she has attempted to get employment with four different trucking lines doing some sort of office work. Her past experience has been that of selling and with the Remington Rand, Inc. She had contacted no employers about obtaining work as a salesperson.”

Now, what did she say with reference to her experience as an office worker? Her statement reveals that she worked for the superintendent of schools when in school and for a year afterwards. Also, as to whether or .not she had made any effort to get work as a sales clerk, reference to the testimony quoted hereinabove shows that she had made application for work at Sears and that altogether she had made four applications. After expressing an opinion that plaintiff had overcome the objection of unavailability for work because of her domestic responsibilities in looking after her children, the Referee, erroneously and without any foundation therefor, concluded:

“Since she has last worked, the claimant has attempted to secure employment with employers doing office work for which she is not qualified in that she does not have the experience in this type of work. She has made no effort to get work in the type of employment she possibly could find work.”

After stating that for claimants to be considered eligible for benefits, they must intend and wish to work, the’Referee concluded, without any scintilla of supporting evidence in the record, that “Her actions clearly indicate that she would rather remain unemployed and receiving benefits than to return to employment.” The record is completely void of any evidence bearing upon or justifying such a statement or conclusion.

The Board of Review, in reaching its conclusions that plaintiff was unavailable for work, reiterated cláimant’s purported statements that she had no one to care for her children; that she could only work at certain hours during the day and did not have transportation facilities, although, when the review was made of claimant’s record, these statements, as heretofore pointed out, had been fully and completely explained by incorporating in the record claimant’s full statements in connection therewith. The record clearly shows that claimant was in position to have her children cared for while she was at work; that she could perform work during any hours and particularly during normal working hours of the day, and that she had the use of facilities for transportation to work. Therefore,' contrary to the findings of the Board of Review, there is no evidence whatsoever in the record upon which it could be reasonably concluded that claimant’s employability is restricted to such an extent that she 'cannot be considered available for work within the meaning of the Louisiana Employment Security Law. On the contrary, the evidence abundantly establishes that she meets all the objections raised to her availability by the Appeals Referee and by the Louisiana Board of Review.

For these reasons, the judgment of thé district court, reversing the decision of the Division of Employment Security of the Department of Labor of the State of Louisiana and decreeing plaintiff entitled to the unemployment compensation benefits as prescribed by the aforesaid statute, is correct, and it should be, and is hereby, affirmed, and the Board of Review is directed to enter an appropriate order.

Affirmed.


author: McBRIDE, Judge.

text:
    Mr. and Mrs. Hubert HALL v. Carl E. FERGUSON, Globe Indemnity Company and Elyah Williams.
    No. 20630.
    Court of Appeal of Louisiana. Orleans.
    June 25, 1956.

      Harry R. Cabral, Harry R. Cabral, Jr. and King F. Nungesser, Jr., New Orleans, for plaintiffs and appellants.
    Porteous & Johnson, New Orleans, for defendants and appellees.
   McBRIDE, Judge.

On July 5, 1954, at approximately 4:30 p. m., in a steady downpour of rain which rendered visibility poor, with heavy automotive traffic moving along U. S. Highway 90 toward New Orleans from the Mississippi line, an automobile owned by Hubert C. Hall and driven by his minor son, Hubert B. Hall, was forced to come to a sudden stop about three-quarters of a mile from the Pearl River Bridge, and it was thereupon struck in the rear by a vehicle owned and driven by Elijah Williams. The sudden stop made by Hall was necessitated by the fact that the automobile ahead had come to an abrupt stop. Mrs. Hubert C. Hall, who was riding- with her son, sustained injuries as a result of the collision aforestated.

Mr. and Mrs. Hubert C. Hall are the plaintiffs in this suit. Hall seeks to recover the sum of $6,000 for grief and mental anguish and for doctor bills and medical expenses in connection with his wife’s injuries, and Mrs. Hall endeavors to recover the sum of $35,500 for her personal injuries. Impleaded as defendants are Elijah (or Elyah) Williams, Carl E. Ferguson, and the latter’s liability insurance carrier, Globe Indemnity Company, and a judgment in solido against the three defendants is prayed for.

Plaintiffs allege that an automobile owned and driven by Carl E. Ferguson struck the rear of the Williams car, and that the impact forced the Williams car forward causing it to collide with the rear end of the Hall vehicle inflicting upon plaintiffs the damages complained of. Both Ferguson and Williams are charged with having been negligent in several enumerated respects and the petition alleges that the accident was caused through their concurrent negligence. It is averred, among other things, that Ferguson was negligent in having followed the Williams car too closely, in driving at an excessive rate of speed, in not keeping a proper lookout, and in not having his car under proper control at all times.

After a trial below, there was judgment dismissing plaintiffs’ suit against all defendants and plaintiffs have prosecuted this appeal therefrom. Prior to argument of the case before us, plaintiffs specifically abandoned and withdrew their claims for damages against Williams and this defendant, of course, is not now before the court, and the only concern we have is: Did any negligent action of Ferguson cause damage to the plaintiffs?

The three automobiles in question formed links in an almost continuous chain of traf-fie on the highway, and there is no doubt that the Ferguson automobile collided with Williams’ car and there is no contention at all that it did not. What Ferguson and his insurer contend is that the Williams car had already run into the Hall vehicle and caused the damage before the collision occurred between the Ferguson and the Williams cars.

Young Hubert B. Hall, who was driving hÍ9 father’s car, said that he was unable to make any observations of traffic conditions to his rear because of the “fogging up” of his rear-view mirror. However, he was positive that his automobile was struck only one blow in the rear by the Williams car. He did not know whether this result was brought about by virtue of the Ferguson car having collided with Williams’ car.

Contrary to her son’s statement that there was only one collision, Mrs. Hall claims that there were two impacts to their car, the first of which was minor, but she says the second impact was severe and was the one which caused her injuries. She asserted that after experiencing the first and lighter impact, she turned and looked to the rear to see what had happened and then it was that the second blow came.

Williams, who said his memory was poor, testified that Hall’s car was stopped some distance ahead of him, and that when he became aware that it had stopped, he applied his brakes; but due to the wet condition of the roadway, the brakes were ineffective and his car skidded and struck the back of the Hall car. He estimates that at the time of this impact his speed was about 15 miles an hour; however, it was sufficient to knock the Hall car forward. He says he remained seated in his car and that after an interval of about two minutes, the Ferguson car came from his rear and ran into his vehicle and “I was jammed” into the Hall car.

Williams’ wife, Rosalie, who had been riding in the car with her husband, appeared as a witness and the over-all import of her confused and unsatisfactory testimony seems to be that the Williams vehicle came into contact with the Hall car twice, the- first time as a result of having skidded into it and secondly as the result of being shoved forward by Ferguson and! that the impacts were almost simultaneous-

Ferguson testified that Williams’ car was ahead of him and that it ran into the Hall car which was stopped. Upon seeing this state of affairs, he applied his brakes but could not avoid striking the Williams car a “moderate” blow. He emphatically states that hi9 automobile did not cause the Williams vehicle to collide with the Hall car.

Mrs. Ferguson was seated alongside her husband in their car, and also testified in the case, but her statements are of little or no help to the court.

The trial court dismissed the suit on the ground that the defendants were not liable because a sudden emergency had been created by other parties and that there was no actionable negligence on anyone’s part. However, our brother below undoubtedly believed that the Williams car before it was hit by Ferguson’s car skidded into the Hall automobile, for we find in his reasons for judgment the following language:

“ * * * the Court is of the opinion that Williams was not driving his automobile with due regard to the circumstances and conditions then and there existing.
“It was raining hard, and the testimony of Williams’ wife and himself seems to corroborate the fact that he was some distance from the Hall automobile and did not know whether it had stopped, or was stopping.”

Considering the record as a whole, the testimony adduced by the plaintiffs falls far short of preponderating to the effect that plaintiffs’ alleged damages resulted from the fact that Ferguson drove his car into the rear oí the Williams car. After analyzing the testimony carefully our firm opinion is that whatever damage the plaintiffs may have sustained resulted from Williams’ car having skidded into the Hall car before it was struck by Ferguson’s automobile. Thus, the damage had .already been done.

Therefore, the. judgment appealed from is affirmed.

Affirmed.