text:
    Mrs. Minnie FISHER, Jr., widow of Allen Charles Fisher, Jr., Individually and on behalf of her minor children, Cheryl L. Fisher, Valarie D. Fisher, Angela Fisher, Sonja Renee Fisher, Allen Charles Fisher, III, and Adrian J. Fisher, Plaintiff-Appellee, v. Forest WALTERS, Richard Hadden, Sr., and Illinois Central Gulf Railroad Company, Defendants-Appellants.
    No. 14864.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 1982.
    Rehearing Denied June 25, 1982.

      Thompson, Sparks, Cudd & Dean by Wood T. Sparks, Monroe, for defendants-appellants.
    James D. Caldwell, Tallulah and Richard V. Burnes, Alexandria, for plaintiff-appel-lee.
    Before HALL, JASPER E. JONES, and FRED W. JONES, Jr., JJ.
   HALL, Judge.

In this wrongful death action arising out of a railroad crossing accident the defendant railroad and the defendant engineer and fireman appeal from a judgment awarding $840,000 in damages to the widow and children of the decedent. Issues presented by the appeal are the negligence of the railroad crew operating the train, the contributory negligence of the decedent driver of the car which was struck by the train, the last clear chance of the railroad crew to avoid the accident, and the amount of damages.

Facts

The accident happened at approximately 10:55 a. m. on February 26, 1975 at the Thomastown crossing of the Illinois Central Gulf Railroad Company mainline track running between Vicksburg, Mississippi and Shreveport, Louisiana, the crossing being located in rural Madison Parish approximately nine miles west of the Vicksburg yard. The track runs east and west, parallel with and south of U. S. Highway 80. Parish Road 7 runs north and south, crosses the mainline track, and forms a T-intersection with U. S. Highway 80. In the vicinity of the crossing the railroad, track is straight and level. View of the crossing by personnel operating the train in a westerly direction is unobstructed for several thousand feet. Likewise, the view of the track by a motorist proceeding north at the crossing is unobstructed for several thousand feet. There are no buildings or other structures in the immediate vicinity of the crossing. Pertinent to a discussion of this accident, a whistle post or board is located 906 feet east of the crossing, milepost # 9 is located 1,734 feet east of the crossing, two trees are located 1,827 and 1,857 feet east of the crossing, and a pink house is located on the north side of Highway 80 at a point 2,026 feet east of the crossing with a tree located directly opposite the house on the south side of the railroad track.

The Illinois Central freight train consisted of 108 cars being pulled by five locomotives. Fifty-seven cars were empty and 51 were loaded. The total weight of the train, including locomotives, cars, and lading, was 7,495 tons. The train was 6,240 feet long. On the morning of the accident the freight train left Vicksburg headed westerly toward Shreveport.

Decedent, Allen Charles Fisher, was principal of the Thomastown High School which is located on Parish Road 7 several hundred feet south of the crossing. Fisher left the school, driving his 1973 Chevrolet Monte Carlo two-door sedan, and headed north on Parish Road 7.

Rosalie Watson, who lives in the Thomas-town area, was driving her car east on Highway 80 and made a right turn onto Parish Road 7. She saw the train coming from her left or from the east and stopped at the cross buck sign. The crossing is marked by standard railroad cross buck signs located 15 feet from the track on each side of the crossing. Fisher approached the crossing from the south and either stopped or slowed prior to getting to the track. He proceeded onto the track and his car stopped with the front end across the track. The train struck the right front side of Fisher’s car which came to rest approximately 55 feet west of the crossing on the south side of the track. Fisher sustained fatal injuries including a broken neck and was found on the backseat of the car. The train came to a stop approximately 1,565 feet west of the crossing.

Summary of Eyewitness Testimony

The train was being operated by Walters, an experienced engineer, who was working as fireman on the day of the accident. He was seated on the right side of the locomotive cab. The engineer, Hadden, was seated on the left side of the cab. Pittman, the brakeman, was seated on the left side of the cab behind Hadden.

The crew members testified that the speedometer of the locomotive was broken but that they timed the speed of the train between mileposts with a watch and that the train was going 40 miles per hour at milepost # 9. The train had been gathering speed since it left Vicksburg. The maximum speed in this area authorized by the railroad’s operating rules and regulations was 45 miles per hour. There is no legal speed limit in this open country area.

Walters testified, backed up by the other crew members, that he started sounding the whistle and bell approximately three to four car lengths before reaching the whistle post and continued sounding the whistle and bell until impact. An average car length is 55 feet, so the estimates are that the whistle was sounded when the train was 1,071 to 1,126 feet from the crossing. The headlight of the locomotive was on and operating.

Each of the three crew members riding in the cab testified that they saw the Fisher automobile approaching the crossing from the south at a slow rate of speed. Walters and Pittman testified that the train was 10 to 15 car lengths from the crossing when they first saw the Fisher automobile. Had-den testified that the train was 8 to 10 car lengths from the crossing when he first saw the car. Converting car lengths into feet, the estimates range from 440 feet to 825 feet. The crewmen testified they thought the automobile would stop and that it hesitated and almost stopped but then continued onto the track, stopping with the front of the car over the track. Walters testified that when he saw the car stopped on the track he immediately put the train in emergency at a point when the train was about five to six car lengths, 275 to 330 feet, from the crossing. The train could not be stopped within that distance and the collision ensued.

None of the crew members recalled seeing the Watson vehicle stopped at the crossing on the north side of the track.

Walters and Hadden testified that if they saw a motorist stop on the track when they were one mile, one-half mile, or one-quarter mile away, they would sound the whistle and continue on under the assumption that the car would move off the track, and would not brake until it became apparent the car was not going to move. Both emphasized, however, that this is not what happened in this instance when the brakes were placed in emergency as soon as the car stopped on the track a short distance in front of the train.

Rosalie Watson testified for the plaintiff. It is somewhat difficult to summarize her testimony because, although she was obviously attempting to describe the events she witnessed as accurately as possible, her testimony was somewhat inconsistent and confusing on some critical points and details. Mrs. Watson testified she turned off of Highway 80 and saw the train down by the pink house (2,026 feet from the crossing). There are two tall trees there (1,827-1,857 feet). She saw the light of the train before she turned off of Highway 80 and the train was by the pink house. It was a little back of milepost # 9 (1,734 feet). Mrs. Watson stopped because she could not beat the train or did not want to try to beat the train in her old car. Mrs. Watson first testified that Fisher came in a “few minutes” and stopped at the sign, but later testified in answer to a leading question that Fisher came up at about the same time, and that they “probably met up together almost.” She testified several times that he stopped. After seeing Fisher stop at the sign she looked back toward the train. When she looked back she saw Fisher’s automobile stopped on the track. The train started blowing its whistle at about the # 9 milepost (1,734 feet). She testified that Fisher was on the track when she first heard the whistle blow. She testified that Fisher never looked up and seemed to be fumbling and shaking, apparently trying to start his car. She was pleading to herself for Fisher to get off the track but he didn’t move. It all happened “real quick.” In her opinion the train was going about 50 miles per hour. Mrs. Watson went back to the scene of the accident later that day and drove up toward the pink house and determined the location of the train when she first saw it in relation to the pink house, the trees, and the # 9 milepost, although the milepost was not visible to her from the crossing at the time the accident happened.

The Expert Testimony

Testifying for the plaintiff was Robert A. MacRae, a physics professor at Jacksonville State University in Jacksonville, Alabama since 1967. MacRae has a bachelor’s degree in physics from Davidson University and a master of science in physics from Vanderbilt University. He has been interested in the braking of trains since 1975 or 1976, has made 80 or 90 studies, and has testified 25 to 30 times. His formula for calculating stopping distances was developed through principles of physics and studies of technical information and publications. Taking the known information concerning the consist of the train and established facts concerning the operation of a train’s air-braking system, using a braking ratio and coefficient of friction within the range of recognized standards, using a formula devised by him which is not completely described in the testimony but seems consistent in general with the formulas used for calculating train braking distances, and using a programmed computer, the professor charted the stopping distances for this particular train at various speeds. The professor testified to the following stopping distances:

40 miles per hour - 1,290 feet
44 miles per hour - 1,500 feet
49 miles per hour - 1,895 feet

On the assumption that the train traveled 23 car lengths plus five locomotive lengths past the point of impact (1,265 feet plus 300 feet, or 1,565 feet) and that the brakes were put into emergency at point of impact, Professor MacRae determined that the train was going 44 miles per hour, give or take four miles per hour. Assuming that the brakes were put into emergency six car lengths or 330 feet prior to point of impact, the total stopping distance of 1,895 feet would indicate a speed of almost 49 miles per hour, give or take four miles per hour.

The professor expressed the opinion that it would take the engineer approximately two seconds to react and put the train into emergency after perceiving danger and the need to take such action. He testified that if the train was traveling 40 miles per hour it would take 35 seconds for the train to travel 2,026 feet, the distance from the pink house to the crossing. At 44 miles per hour it would take 31 seconds. If the danger was perceived by the engineer at 2,026 feet and the train was traveling 40 miles per hour the engineer had 13 seconds or 736 feet to put the train in emergency and avoid the collision. If the train was traveling at 44 miles per hour the engineer had seven seconds or 461 feet to put the brakes in emergency and avoid the accident. Professor MacRae testified that if the train had been traveling at 40 miles per hour and the crew perceived the problem at the # 9 milepost, 1,734 feet, the engineer would have had 440 feet or six seconds time to put the brakes in emergency and avoid the collision.

Professor MacRae testified that if the brakes had been applied 1,000 feet from the point of impact there would have been significant slowing and less damage. It takes 19 seconds for the brakes on this train to become fully operative and at the end of that time the train’s speed would have decreased by 10 miles per hour from a 45 mile-per-hour speed. If the train had been going 45 miles per hour and the brakes had been put into emergency at 1,000 feet from impact the train would have been going 36 miles per hour at impact with 37 percent less energy transfered than if the train had not been braked. If the train was going 45 miles per hour and was put into emergency at 1,500 feet from impact the train would be going 15 miles per hour at impact and there would be 89 percent less energy trans-fered. Braking the train going 40 miles per hour at 1,000 feet from impact would result in 61 percent less energy transfered at impact; braking the train going 40 miles per hour at 1,500 feet would result in the train’s stopping before impact.

Testifying for the defendant was Clifford A. Kifer, senior regional engineer for Westinghouse Air Brake Company, one of the two manufacturers of air brakes for railroads in the United States. Kifer has a mechanical engineering degree from the University of Pittsburgh and has been employed by Westinghouse for 27 years. He has conducted actual braking tests with trains and in calculating stopping distances uses a formula devised in the early 1900s by Westinghouse. He has testified in court about twice a year for the past 14 or 15 years. The record does not disclose the precise formula used by Kifer, but as in the case of the MacRae formula, it appears that his formula is probably generally consistent with formulas used in these matters.

On the basis of his calculations, Kifer testified to the following stopping distances:

40 miles per hour - 1,938 feet
45 miles per hour - 2,423 feet
48 miles per hour - 2,776 feet
49 miles per hour - 2,878 feet

Kifer testified that based on the speed of the train the stopping distance could be calculated within a variance of 10 percent one way or the other.

Based on an assumption that this train was placed in emergency 330 feet from the crossing and that the train traveled 1,400 feet past the crossing before it came to a stop for a total stopping distance of 1,730 feet, Kifer calculated the speed of the train at a little less than 40 miles per hour.

Neither expert attacked the formula of the other, although MacRae testified he considered his formula more accurate because it was calculated on a computer at one second intervals whereas the Kifer formula was not.

There is a significant variance between the stopping distances calculated by the two experts, both of whom are well qualified and both of whom seem to have used correct data and reasonable formulas. On balance, it appears that MacRae’s educational and scientific credentials are superior and that his calculations are more sophisticated and precise. Accordingly, we accept Mac-Rae’s calculations as being more nearly accurate, as did the trial court. At best, however, such calculations are educated estimates of speed and stopping distance in view of the variables involved in any specific situation, as recognized by both experts who qualified their opinions within certain ranges of variance.

Action of the Trial Court

This case was tried in July 1979, more than four years after the accident. In July 1980, about a year after the trial, the trial court handed down written reasons for judgment, finding for the defendants. The court found that the train was traveling 45 miles per hour and that its speed was not excessive. The court noted that Rosalie Watson’s concept of numbers and distances seemed lacking. The court found no reckless operation proven nor failure to maintain a proper lookout. No reasonable means of avoiding the collision was shown. The court found that Fisher stopped at the cross buck sign, drove onto the track, and never looked up. The whistle was blowing but he just sat there and the train struck the car. Mrs. Watson approached the crossing first and waited. Fisher apparently came to a partial stop but tried to make it across the track and failed. In considering last clear chance, the court found that when the defendant’s crew became aware of the fact that the Fisher vehicle was not going to move it went into an emergency stop but it was too late and defendant could not have by reasonable care prevented the accident. The court further found Fisher guilty of contributory negligence in failing to observe the train and in failing to hear the warning whistle in time to abandon the car.

At the trial a substantial portion of Mac-Rae’s testimony was not recorded and transcribed, apparently due to a malfunction in the recording machine. On plaintiff’s motion the trial court granted a new trial, limited to the taking of MacRae’s testimony by deposition. MacRae’s testimony was taken and in September 1981, more than two years after the trial, the court handed down written reasons for judgment, finding for the plaintiff. The court recognized Mac-Rae’s opinion as being unbiased and his method as being newer and more precise and accepted his testimony that the train must have been traveling 49 to 50 miles per hour. The court found there must have been some inattention on the part of the train crew because they failed to observe Mrs. Watson’s automobile on the north side of the track. The court found the railroad negligent in failing to have a working speedometer which probably contributed to diverting the crew’s attention from the track. The court also found the crew was negligent in operating the train at a speed in excess of the regulated train speed limit. The court found that Fisher slowed at the signs and was justified in attempting to cross because the train was 2,000 feet away at the time. The court determined that when the emergency was in view before the train reached the whistle post it sounded its horn and whistle. The court found that if Fisher was negligent in getting on the track the train had time to have slowed rather than have continued to accelerate on seeing the vehicle crossing the track. The train crew must have failed to maintain their lookout while the car stayed on the track stalled, with the decedent trying to start the car. The court found that the train crew followed company policy in not slowing or stopping until it was too late to avoid a collision. A reasonable man should have observed the decedent’s position of peril before it became impossible to stop the train.

Standard of Appellate Review

The appellate court should not disturb the trial court’s factual finding in the absence of manifest error, that is, unless the finding is clearly wrong. The appellate review of facts is not completed by a determination that there is a reasonable factual basis for the finding of the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous). A finding may be clearly wrong in spite of the presence of some evidence in the record which, if believed, would support the finding. The appellate court should determine whether the district court judgment is clearly wrong considering all the evidence. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979); La.Const., Art. 5, § 10(B).

Burden of Proof

The plaintiff alleging negligence has the burden of proving the facts supporting a finding of negligence by a preponderance of the evidence. Wheat v. New Orleans and Northeastern Railroad Co., 245 La. 1099, 163 So.2d 65, 70 (1964); Perkins v. Texas and New Orleans Railroad Company, 243 La. 829, 147 So.2d 646, 648 (1962). The same burden applies to a plaintiff asserting the doctrine of last clear chance. Proof is sufficient to constitute a preponderance when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972).

Testimony by members of a train crew must not be disregarded merely because they might be biased or interested witnesses. Breaux v. Texas and Pacific Railway Company, 176 So.2d 640 (La.App. 1st Cir. 1965). However, it is not manifest error for the trier of fact to believe the testimony of a credible witness rather than that of a train crew, and a judgment will not be set aside in a case where the testimony is conflicting when the testimony of the witness, if accepted as credible, is sufficient to sustain the judgment. Begnaud v. Texas & New Orleans Railroad Company, 136 So.2d 123 (La.App. 3rd Cir. 1962). Determinations of credibility should be made in the light of all the evidence.

Duty of the Railroad

The operator of a railroad train may presume that a vehicle approaching the track at a crossing will stop in time to avoid an accident. The train crew is not required to attempt to stop or even to prepare to stop unless there is reason to believe the motorist is unaware of the oncoming train or does not intend to stop. Gibson v. Kansas City Southern Railroad Company, 233 So.2d 26 (La.App. 4th Cir. 1970), writ denied, 256 La. 254, 236 So.2d 31 (La.1970); Parks v. Texas Pacific-Missouri Pacific Terminal R., 152 So.2d 845 (La.App. 4th Cir. 1963); Hymel v. Texas & New Orleans Railroad Company, 145 So.2d 138 (La.App. 4th Cir. 1962). Likewise, the operator of a train may assume that a motorist who starts across the track at a crossing will proceed across the track and will not stop on the track. Howard v. Illinois Central Railroad Company, 349 F.Supp. 141 (U.S. D.C., M.D. La., 1972).

In the Wheat case, supra, which involved a collision between a train and a stalled car at a crossing, the Louisiana Supreme Court held:

“The reasonable rule in such a case is that the engineer when sighting a person or a vehicle on the track can presume that he or it will move from the position of danger upon the sounding of the train’s bell or the blowing of its whistle or horn; that it is only when the engineer realizes that the warnings are not going to be heeded that he should make an effort to stop the train. This rule is recognized and approved throughout the country.... ”

The court concluded in that case that “the engineer was not negligent in failing to realize that the automobile was not going to move off the track at the first moment it came within his vision, and therefore was not negligent in failing to take steps to stop the train at that moment.” The court also recognized, however, the rule that when “the engineer saw and appreciated the peril, it was his duty to use every reasonable means to prevent the collision.”

Emphasis was given in the Wheat case, in which the train was a passenger train, to the duty owed by the engineer to protect the safety of the passengers and to the danger presented to passengers by an emergency stop. The court also noted that even if the engineer was held to a higher degree of care than stated in the opinion, the train could not have been stopped in time to prevent the collision had there been an immediate emergency application of the brakes.

Believing that the rule enunciated in the Wheat case must be viewed in the light of the facts of that case, we would apply a higher standard of care under the facts of the instant case involving a freight train traveling at a lesser rate of speed. Automobile — train cases are “to be adjudged on their own facts and circumstances — those surrounding the collision; litigants can no longer be subjected to hard and fast rules which are obsolete; there can be no absolute.” Odom v. Hooper, 273 So.2d 510 (La.1973).

In this case, when the engineer saw the automobile stop on the track and as soon as he perceived or should have perceived that the automobile was not going to proceed across the track, his duty was to attempt to stop the train by making an emergency application of the brakes. He was not entitled to continue on, relying on the sounding of the whistle and bell until it was too late to make an effort to stop. If, however, the train was not far enough away from the crossing at the time the automobile stopped on the track for the engineer to have stopped or significantly slowed the train by making an emergency application of the brakes after perceiving the danger, then there can be no liability on the part of the railroad because there was no negligence and no last clear chance to avoid the accident.

Negligence of the Railroad

The key factual issue in this case is whether the train was far enough from the crossing at the time the Fisher automobile stopped on the track that the train crew could have stopped or significantly slowed the train prior to the collision. If the accident happened in the manner testified to by the train crew, there obviously was no negligence on the part of the crew. Their testimony was that the Fisher automobile approached the crossing at a slow speed, almost came to a stop, and then continued onto the track, stopping with its front end across the track at a time when the train was about six car lengths or 330 feet from the crossing. Clearly, the train could not have been stopped in time to avoid the collision.

The only evidence contrary to the testimony given by the train crew is the testimony of Rosalie Watson. Her testimony was that the Fisher automobile drove onto the track and stopped when the train was at the # 9 milepost, a distance of 1,734 feet from the crossing. If her testimony is precisely accurate, it might have been possible for the engineer to have perceived the danger and reacted by making an emergency application of the brakes in time to stop the train or substantially reduce its speed prior to the collision.

Considering all the evidence, it is our view that the factual findings of the trial court that the train was 2,000 feet from the crossing when Fisher started across the track, that the crew was inattentive and not keeping a proper lookout, that the crew continued ahead while the car was stalled on the track, and that the crew had time to slow the train, are clearly wrong. Mrs. Watson’s testimony, weighed against that of the train crew, is not sufficient to establish by a preponderance of the evidence that the train was a sufficient distance from the crossing at the time the Fisher automobile stopped on the tracks for the train to be stopped or significantly slowed prior to the collision.

There are a number of factors which weigh against acceptance of Mrs. Watson’s testimony as precisely accurate and credible. To accept her testimony that the train was 1,700 feet from the crossing when Fisher stopped on the track would require the court to totally disregard the testimony of the members of the train crew and to find their testimony untrue. Mrs. Watson’s lack of perception of time and distance is demonstrated repeatedly in her testimony. It is important that she thought the train was so close that she should stop and not try to beat it, and she reached the crossing before Fisher did. By reference to landmarks, she testified the train was 2,000 feet away when she first saw its lights before she turned off of Highway 80 onto the parish road. After that, she turned onto the parish road, stopped at the cross buck sign, saw Fisher come up and stop at the sign, looked back at the train which started sounding its whistle, and then looked back and saw Fisher’s automobile on the track. By this time, several seconds had surely elapsed since she first saw the train and the train would have traveled several hundred feet, putting it closer than the milepost 1,700 feet away. If the train was as far away as Mrs. Watson estimated when Fisher’s car stalled on the tracks, Fisher would have had ample time to get out of the car and away from the tracks. Mrs. Watson was clearly an unschooled and untrained observer, and the accident naturally caused her to be excited and emotional. As she said, it all happened “real quick.” She testified the train was sounding its whistle when she first saw Fisher on the track, which would be consistent with the crew’s testimony that the Fisher vehicle moved onto the track after the train started sounding its whistle at the whistle board, 900 feet from the crossing.

Unless the train was as far, or almost as far, as the milepost when Fisher stopped on the track, it would have been impossible to stop the train in time to avoid the collision, regardless of which expert’s stopping distances are accepted and regardless of which estimate of the train’s speed is accepted. Plaintiff failed to establish by a preponderance of the evidence that the train was that far away, and consequently failed to prove negligence on the part of the train crew that was a legal cause of the accident.

This determination that the evidence fails to establish that the accident could have been avoided by the train crew after the danger arose and became apparent to the crew precludes a finding of negligence and, as well, application of the last clear chance doctrine.

Because of this determination, it is unnecessary to consider the other issues raised by the appeal.

Decree

For the reasons assigned, the judgment of the district court is reversed and plaintiff’s demands are rejected, at plaintiff’s costs, including the costs of appeal.

Reversed and rendered.


source: Caselaw Access Project

author: KLEES, Judge. WARD, Judge,

license: Public Domain

text:
    Mary MESSINA v. John BOWEN, Government Employees Insurance Company, and the City of New Orleans, Department of Streets.
    No. 12789.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1982.
    Darleen M. Jacobs (A Professional Law Corp.), New Orleans, for plaintiff-appellee.
    Robert E. Leake, Jr., W. Paul Andersson, Hammett, Leake & Hammett, New Orleans, for defendants-appellants.

      Before SCHOTT, KLEES, AUGUSTINE, WARD and WILLIAMS, JJ.
   KLEES, Judge.

This case arises out of an automobile accident which occurred at the intersection of St. Ferdinand Street and St. Claude Avenue in New Orleans. Plaintiff was awarded judgment against defendants John Bowen and Government Employees Insurance Company (GEICO). Only GEICO appeals.

The facts show that on May 20,1978, the plaintiff was proceeding in a southerly direction on St. Ferdinand Street and stopped at its intersection with St. Claude Avenue. Her objective was to cross St. Claude Avenue, the favored street. When she reached this intersection she testified that she could not tell if any automobiles were approaching the intersection from St. Claude Avenue because her vision was obstructed by parked cars on St. Claude Avenue.

The plaintiff further testified that “I Looked and I couldn’t see. I pulled out a little more — I could see there was a train passing. But I still couldn’t see enough to see if there was cars. So I pulled on a little more. And that’s the last thing I remember.” At this time she proceeded forward while looking straight ahead and while in the right lane of St. Claude Avenue her automobile was struck squarely in the middle by the car driven by defendant’s minor son, Douglas R. Bowen.

The defendant’s minor son testified that he was travelling approximately 35 to 40 miles per hour at the time he initially observed the plaintiff move forward into his path. He further testified that he did not see the plaintiff until she moved forward into his path. Theodore Pierce, the police officer who investigated the accident, provided support for this claim by the defendant when he testified that the same parked cars that obstructed the view of the plaintiff could have obstructed the view of the defendant.

David Bickham, an independent witness, testified that he was travelling in his vehicle to the rear of and in the left lane of St. Claude Avenue while the defendant was in the right lane. He claimed to have seen the plaintiff’s car when it was stopped and began to move forward. However, this does not prove that the defendant could have or should have seen the plaintiff’s car.

The appellants contend that the trial judge committed reversible error by failing to find the plaintiff contributorily negligent which would be a bar to her recovery.

Although the trial judge concluded Douglas Bowen was negligent because he was travelling 35 to 45 mph on a street having a 35 mph speed limit; nonetheless Bowen had the right of way on St. Claude Avenue and it is a firm rule of law that when a motorist is travelling on a favored street he has the right to assume that any driver approaching the intersection from a less favored street will yield the right of way. This right of way driver can indulge in the assumption until he sees or should have seen the other car has not yielded. Duchmann v. Allstate Insurance Company, 389 So.2d 896 (La.App. 4th Cir. 1980).

Assuming for the sake of argument that the defendant’s view of the plaintiff was not obstructed, he was still entitled to assume that she would yield the right of way, particularly since she did stop a second time after she moved forward to see if it was safe to cross the street.

Uncontradicted testimony shows that the defendant was approximately two (2) car lengths or 36 feet away at the time he observed the plaintiff’s car move out in front of his path. This fact was corroborated by the testimony of Earle H. Bou-dreaux, an expert in accident investigation and reconstruction, who stated that the total stopping distance at 40 mph would be 85.61 feet, and at 35 mph the total stopping distance was 70 feet which indicates the accident was unavoidable.

Furthermore, a driver entering a right of way street where the view is obstructed is under a duty to proceed with extreme caution. Continental Insurance Company v. Duthu, 235 So.2d 182 (La.App. 4th Cir. 1970) writ refused 239 So.2d 346, 256 La. 820 (1970).

It is clear that the plaintiff failed to exercise the extreme care required of her. Based upon the plaintiff’s own testimony it appears that she assumed that a crossing train blocked off the traffic giving her freedom to cross when she in fact was not certain that there were no cars approaching the intersection from St. Claude Avenue.

The appellee argues preemption. However before a motorist can successfully rely on preemption he must show that he entered the intersection at a proper speed and sufficiently in advance of the car on the intersecting street to permit him to cross without requiring an emergency stop by the vehicle; entry into the intersection just a fraction of a second ahead of the other vehicle does not create a preemption. West v. Travelers Indemnity, 225 So.2d 139 (La.App. 4th Cir. 1969). Gracias v. Collins, 236 So.2d 295 (La.App. 4th Cir. 1970).

In the present case all of the parties testified that the plaintiff’s car was struck while in the right lane of St. Claude Avenue and that plaintiff did not even reach the middle of the street before she was hit. The conclusion necessarily follows that plaintiff should have seen defendant approaching and should have remained in her position on St. Ferdinand Street until it was clear to proceed.

The trial court concluded that the sole proximate cause of the accident was the negligence of the minor driver, Douglas Bowen, and exonerated plaintiff from fault. If plaintiff was guilty of contributory negligence, which was a proximate cause of the accident she would be barred from recovery. Our review of the record convinces us that the exoneration of plaintiff Messina from contributory negligence constituted manifest error and we reverse.

Accordingly, the judgment appealed from is reversed and there is judgment in favor of Government Employers Insurance Company against Mary Messina, dismissing her suit at her cost.

REVERSED AND RENDERED.

WARD, Judge,

dissenting.

I respectfully dissent from the majority decision which reverses the trial court judgment, which was based on a factual finding: Douglas Bowen was negligent; Mary Mes-sina was not. The majority disagrees with the finding that Mrs. Messina was not negligent and makes its own finding that she was — relying on the trial court record.

Although I disagree with the majority’s new finding of facts, my view of the facts is of small importance, but the trial judge’s is not, and for good reason. His factual findings must be given great deference. Hence, the standard of appellate review permits reversal of his findings only when they are clearly wrong (manifestly erroneous). The majority falls far short of demonstrating that the trial judge’s findings were clearly wrong.

In my opinion, this case is a remarkable illustration of why the findings of fact by either judge or jury should be given great deference. In this intersectional automobile accident, the dominant issue is whether the driver of a vehicle, Mrs. Messina, was contributorily negligent. On May 29, 1978, shortly before 4 p.m., Mrs. Messina was driving her automobile in a southerly direction (toward the river) on St. Ferdinand, a two-way street. After approaching the intersection of St. Ferdinand and St. Claude Avenue, she stopped her vehicle, although the intersection was uncontrolled by either traffic light or stop sign. Her vision of traffic was blocked by vehicles parked on St. Claude, a neutral ground street with two moving traffic lanes and one parking lane on each side. After stopping, she looked but she couldn’t see, so she cautiously inched out into the right lane of St. Claude, where she was struck broadside by the vehicle driven by Douglas Bowen.

On the other hand, Mr. Bowen did not exhibit such caution. Mr. Bowen, the sixteen-year-old son of the defendant, was driving his father’s car on St. Claude in a westerly direction (toward Canal Street). His companion, a sixteen-year-old youth, occupied the right front passenger seat of the vehicle, and they were talking and listening to jazz. When they approached the intersection of Press Street and St. Claude, three-fourths of a block before the intersection where the accident occurred, a passing train blocked their path, and they were forced to stop. When the train partially cleared the intersection, although it blocked the lane he was stopped in, Bowen took off and circled around the last ear of the train, and proceeded on St. Claude in the lane of traffic nearest the neutral ground. A bicyclist blocked that lane, travelling much too slow for Mr. Bowen, and he quickly changed into the right-hand lane, where he then observed Mrs. Messina’s vehicle — too late to avoid the accident — and he smashed into the left side of her car. A witness, who was in a vehicle which had also been forced to stop because of the train, described Bowen’s takeoff as very fast. Bowen admitted driving between thirty-five and forty miles per hour when he observed the Messina vehicle; the trial judge found he was driving at least thirty-five miles per hour and perhaps as much as forty-five miles per hour.

The majority relies upon a decision of this court to establish the principle (a matter of common sense): “A driver entering a right of way street where the view is obstructed is under a duty to proceed with extreme caution.” Continental Insurance Co. v. Duthu, 235 So.2d 182 (La.App. 4th Cir. 1970), writ ref. 239 So.2d 346, 256 La. 820 (1970). Since I believe the learned trial judge is equally aware of this principle, when he determined that Mrs. Messina was not negligent he must have determined that she had proceeded with extreme caution. He undoubtedly considered Bowen’s negligent driving — circling the last railroad car, accelerating at a great speed, swerving from the left lane to the right — as conduct which a reasonable, prudent person could not foresee. Additionally, he undoubtedly believed that defendants, who must bear the burden of proving contributory negligence by a preponderance of the evidence, did not prove their case.

The implications of the majority’s opinion cannot be ignored: appellate court judges can best determine facts. In my opinion, they cannot. Hence, the standards for appellate review require manifest error before findings of fact are vacated and new findings substituted by appellate courts. This is because trial judges (and jurors) are uniquely suited to answer factual questions after presentation of the evidence during trial. They participate in a courtroom drama which is an attempt to recreate an atmosphere and portray events that occurred at a different time and place. This drama permits the finder of fact to visualize and feel the occurrence of those events in a way that is extremely difficult to reproduce by means of the cold, dispassionate transcript in the record that must be reviewed by the appellate court. In my opinion, the majority mistakenly relies upon the transcript in this case to substitute its findings of fact for the trial judge’s.

Moreover, although the majority relies upon the transcript, that transcript, however inadequate, reveals equal support for the trial judge’s finding that Mrs. Messina was not negligent. Additionally, before appellate courts reverse a trial judge’s findings, it is not sufficient for the transcript to show the trial judge was wrong, it must show he was clearly wrong (manifestly erroneous). In my opinion he was not manifestly erroneous, and we should affirm his judgment.

WILLIAMS, J., dissents for the reasons assigned by WARD, J.


author: CHIASSON, Judge.

text:
    SUPERIOR STEEL, INC. v. BITUMINOUS CASUALTY CORPORATION.
    No. 14553.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Felix R. Weill, Baton Rouge, for plaintiff-appellant Superior Steel, Inc.
    Carolyn Pratt Perry and Charles W. Franklin, Baton Rouge, for defendant-ap-pellee Bituminous Cas. Corp.

      Before EDWARDS, LEAR and CHIAS-SON, JJ.
   CHIASSON, Judge.

Plaintiff-appellant, Superior Steel, Inc., appeals the judgment of the trial court dismissing, on a motion for summary judgment, its action against its insurer, Bituminous Casualty Corporation, defendant-ap-pellee.

Appellant filed this action against its comprehensive general liability insurer seeking indemnification for damages it had paid to a contractor as a result of appellant’s products not meeting the required specifications. Appellee contends that the insurance policy issued to appellant does not afford coverage under the circumstances of the loss.

The facts of the instant case are undisputed insofar as they relate to the motion for summary judgment filed by appellee. Appellant’s business generally involves furnishing fabricated steel products to general contractors on construction projects. In this particular instance, appellant was subcontracted by Boh Brothers Construction Company, Inc. to furnish steel anchor bolts for the Big Cajun No. 2 nuclear power plant in New Roads, Louisiana. Appellant was to deliver the anchor bolts in accordance with drawings and specifications furnished to it by Boh Brothers.

In furtherance of its obligation under the contract, appellant negotiated with Metal Services Corporation for a supply of steel rounds to fabricate into the specified bolts. Subsequently, Metal Services supplied appellant with the steel rounds, and appellant fabricated them into anchor bolts. The anchor bolts were then furnished to Boh Brothers, which installed them into concrete at the project site. After all of the anchor bolts were installed, Boh Brothers began “knocking” the bolts for alignment, which is a normal procedure. During the performance of this task, one of the anchor bolts broke. As a result, Boh Brothers decided to have all of the bolts tested. The test indicated that the bolts did not meet the requirements of the drawings and specifications in that the carbon content of the steel was excessive and that the tensile strength of the bolts was substandard. Appellant’s president and primary stockholder, Joseph E. Easley, admitted that the bolts did not meet Boh Brothers’ requirements.

After it was discovered that the bolts did not meet the specifications, appellant agreed to pay for the repairs, because Boh Brothers was a valued customer. Appellant has since filed suit against Metal Services for indemnification contending that the steel supplied did not meet specifications.

The repairs, which were necessitated by the substandard bolts, consisted of drilling out the installed bolts and replacing them with new bolts furnished by appellant. The drilling to remove the defective bolts damaged the surrounding concrete, necessitating its repair also. The removed bolts were rendered useless by the removal process. Appellant seeks recovery of the value of the defective bolts and the amount it paid in damages to Boh Brothers. Appellee contends that it is entitled to summary judgment because the coverage provisions of the comprehensive general liability section of the policy do not afford coverage and because specific clauses of the policy expressly exclude coverage, even if the policy does afford coverage. We are not favored with the trial court’s reasons for granting the summary judgment.

Article 966 of the Louisiana Code of Civil Procedure provides, in part:

“The [summary] judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law."

In the instant case, there is no genuine issue of material fact as the facts are undisputed. Hence, a decision in this case rests upon whether or not the trial court was correct in concluding that, under the undisputed facts, defendant was entitled to judgment as a matter of law.

Bituminous alleges that there is no coverage under the provision of the comprehensive general liability insurance policy since there was no accident or event which would constitute an occurrence. We find that, regardless of the “occurrence” argument, there exists coverage under the “completed operations hazard” and “products hazard” provisons of the policy in question. Vitenas v. Centanni, 381 So.2d 531 (La.App. 4th Cir. 1980).

Since we conclude that there is coverage under the provisions of the policy in question, we next must decide whether any of the policy exclusions absolve the insurance company of any liability in this case.

The three exclusions on which defendant-appellee relies are as follows:

“This insurance does not apply:
* * * * * *
“(m) to loss of use of tangible property which has not been physically injured or destroyed resulting from
* * * * * *
(2) the failure of the named insured’s products or work performed by or on behalf of the named insured to meet the level of performance, quality, fitness or durability warranted or represented by the named insured;
but this exclusion does not apply to loss of use of other tangible property resulting from the sudden and accidental physical injury to or destruction of the named insured’s products or work performed by or on behalf of the named insured after such products or work have been put to use by any person or organization other than an insured;
“(n) to property damage to the named insured’s products arising out of such products or any part of such products;
* * * * * *
“(p) to damages claimed for the withdrawal, inspection, repair, replacement, or loss of use of the named insured’s products or work completed by or for the named insured or of any property of which such products or work form a part, if such products, work or property are withdrawn from the market or from use because of any known or suspected defect or deficiency therein;”

We have before us a claim for damages to tangible property which has been physically injured. Therefore, exclusion (m)(2) is clearly inapplicable since it applies only to “. . . tangible property which has not been physically injured or destroyed ...”

The defective bolts in question are the “named insured’s products” and under exclusion (n), this policy does not apply to damage to the bolts themselves. Peltier v. Seabird Industries, Inc., 304 So.2d 695 (La.App. 3rd Cir. 1974); Vobill Homes, Inc. v. Hartford Accident & Indemnity Company, 179 So.2d 496 (La.App. 3rd Cir. 1965); Breaux v. St. Paul Fire & Marine Insurance Company, 345 So.2d 204 (La.App. 3rd Cir. 1977). The trial court was correct in granting summary judgment on this particular point. However, the liability of Bituminous is limited to the damage to tangible property other than the bolts themselves due to the defective condition of the product. Peltier, supra; Vobill Homes, Inc., supra; Breaux, supra.

Bituminous, citing the cases of Breaux, supra, and Vobill Homes, Inc., supra, contends that exclusion (p) unambiguously excludes coverage for damages suffered by a contractor as a result of his defective work. We think that this is not the holding of Breaux. Breaux has been cited for the proposition that a similar policy work-product exclusion was applicable with respect to any obligation of the policyholder-contractor to repair or replace its own allegedly defective work in construction of an apartment complex. Breaux cites the case of Vobill Homes, Inc., which held that recovery for the injury to the work-product itself was excluded by the clause in question. Vobill does not speak of damage to other property but only to injury to the work-product itself by reason of its own defectiveness.

Plaintiff-appellant relies on the case of Arcos Corporation v. American Mutual Liability Insurance Company, 350 F.Supp. 380 (E.D.Penn.1972), which held that exclusion (p) was applicable only when an insured learns that all of its products have a defect and attempts to prevent any additional accident by withdrawing them from the market or from use. “Complete operations hazard” and “products hazard” contemplate “... risks resulting from the liability of a manufacturer or a contractor for faulty or defective products or work to other users thereof suffering injury from such products or work after the products have left possession of the manufacturer or after the work has been completed and accepted.” Roberts v. P. & J. Boat Service, 357 F.Supp. 729 (D.C.La.1973).

We hold that damages suffered by other users resulting from a defective product after the manufacturer has completed all of its operations required by the contract are covered by the liability policy issued by appellee.

Lending credence to our conclusion is the fact that the endorsement attached to and made a part of this policy relative to completed operations and products liability insurance fails to exclude this particular coverage as has been done in other insurance policies. In the Roberts case, supra, the court denied coverage on the basis of the following policy endorsement:

“... It is agreed that such insurance as is afforded by the bodily injury liability coverage and the property damage liability coverage does not apply to bodily injury or property damage included within the completed operations hazard or the products hazard...”

Additionally, it is well-established in Louisiana and elsewhere that a clear and unambiguous provision in an insurance contract which limits liability must be given effect. Oceanonics, Inc. v. Petroleum Distributing Company, 292 So.2d 190 (La.1974). However, we find that the clause in question is subject to so many inconsistent interpretations that it must be termed ambiguous and, therefore, the exclusionary clause must be resolved in favor of coverage. Insurance Company of North America v. Solari Parking, Inc., 370 So.2d 503 (La.1979).

For the foregoing reasons, the trial court correctly granted Bituminous’ motion for summary judgment as it pertains to plaintiff-appellee’s claim for damages to its own work-product and incorrectly granted the motion as it pertains to damages caused to others by such defective products.

The judgment of the trial court is affirmed in part, reversed in part and the case is remanded to the trial court for further proceedings consistent with this opinion. All costs are to await the final determination of this case.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . “[Cjompleted operations hazard” includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. “Operations” include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:
      (1) when all operations to be performed by or on behalf of the named insured under the contract have been completed,
      (2) when all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or
      (3) when the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.
      Operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed.
      The completed operations hazard does not include bodily injury or property damage arising out of
      (a) operations in connection with the transportation of property, unless the bodily injury or property damage arises out of a condition in or on a vehicle created by the loading or unloading thereof,
      (b) the existence of tools, uninstalled equipment or abandoned or unused materials, or
      (c) operations for which the classification stated in the policy or in the company’s manual specifies ‘including completed operations’;”
      “[Pjroducts hazard” includes bodily injury and property damage arising out of the named insured’s products or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs away from premises owned by or rented to the named insured and after physical possession of such products has been relinquished to others;”


text:
    GONZALES MANUFACTURING & INDUSTRIAL MACHINE WORKS, INC. v. Hilton J. HOOVER, Sr.
    No. 14603.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Crawford, Goldsmith & Holdridge, Gordon R. Crawford, Gonzales, for plaintiff & appellant.
    David A. Hamilton, Baton Rouge, Celia R. Cangelosi, Gravel, Roy & Burnes, Alexandria, John DiGiulio, Baton Rouge, for defendant & appellee.
    Before EDWARDS, LEAR and CHIAS-SON, JJ.
   CHIASSON, Judge.

Gonzales Manufacturing & Industrial Machine Works, Inc., plaintiff-appellant, appeals the trial court’s judgment which held it and the defendant-appellee, Hilton J. Hoover, Sr., to be co-owners in indivisión in the proportion of an undivided one-half interest each in certain described real estate and in various items of movable property located thereon.

This action originated with plaintiff filing a suit for dissolution of the sale of two pieces of property on the basis of non-payment of the purchase price. “Lot Number One” was declared to be the property of the plaintiff pursuant to its motion for summary judgment. The other piece of property (hereinafter referred to as “Lot Number Four”) is the subject matter of this litigation and is fully described hereafter.

Plaintiff-appellant’s suit asks the court: to declare it to be the owner of said lot; to give it a $38,000 credit for all of the money, material and labor it expended in the construction of a metal building located thereon; to declare it to be the owner of said metal building and certain equipment and machinery; to condemn the defendant-ap-pellee to pay $78,336 in itemized damages suffered by the plaintiff-appellant and reasonable attorney fees; and to prohibit the defendant from using a deceptively familiar corporate name.

Defendant-appellee answered the suit alleging that the sale of Lot Number Four was executed in return for the plaintiff-appellant acquiring an interest in a new business (to be called Gonzales Industrial Valve, Incorporated) to be constructed on the property. In reconvention, defendant-appellee alleges: that the business was erected almost entirely with his labor, materials and finances; that all of the movable equipment was supplied and/or built by him; that the plaintiff-appellant was supposed to use its connections to acquire industrial valve business which, following the opening, it did not do; that he has over $75,000 invested and has suffered damages in the amount of $193,800.00.

A third party demand was filed by Hilton J. Hoover, Sr. against Gonzales Industrial Valve, Incorporated, alleging that Gonzales Industrial Valve, Incorporated is primarily liable for any services rendered in connection with Lot Number Four since subsequent to the sale of Lot Number Four, Hilton J. Hoover, Sr. agreed with Hoover Construction Company to erect and outfit a building on said lot. As a result of the benefit to Gonzales Industrial Valve, Incorporated, it is liable to him for any services rendered in connection with erecting a building on Lot Number Four.

Hoover Construction Company, owned by Hilton J. Hoover, Sr., intervened alleging that it purchased a steel building located on a different site and then used its resources to disassemble and transport it to Lot Number Four. Its work crews and equipment were used to design and build valve repair equipment and prepare the building and its contents for a valve repair business. Hoover Construction Company lists its expenses as $161,101.71.

A cash sale in the form of an authentic act was passed in July of 1974, purportedly transferring Lot Number Four from Gonzales Manufacturing & Industrial Machine Works, Inc., to Hilton J. Hoover, Sr. From very confusing and inconsistent testimony we find that Hilton found an old airplane hanger and with the agreement of his brother, Leon, President of Gonzales Manufacturing & Industrial Machine Works, Inc., that the building would be good for the valve repair shop, the building was bought in November of 1974 and moved onto Lot Number Four in July of 1975 by defendant-appellee.

The testimony of the brothers, Leon and Hilton, indicates that it was mutually agreed and the intent of both men for Leon to provide the property and Hilton to provide the building for the purpose of starting a valve business. This agreement was perfected with the sale of the property to Hilton Hoover and the purchase of the building to be used on the property.

The building was refurbished, machinery was bought, repaired and built, at the expense, time and labor of the plaintiff and the defendant. Hilton testified that Leon authorized him to incorporate the business and he thereafter employed an attorney to prepare the necessary papers. Around November of 1976, when he brought Leon the papers to sign, the plan to start the valve business together deteriorated.

All of the parties agree that the breaking point between the two brothers occurred at this time when they could not agree on the percentage of shares of stock the parties would own. Gonzales Manufacturing & Industrial Machine Works, Inc. filed the present suit in February of 1977 alleging that Hilton has not paid the purchase price of Lot Number Four and it is entitled to be declared owner of said property.

The trial court held the parties to be co-owners in indivisión in the proportion of an undivided one-half interest each in and to Lot Number Four and the various items of movable property located thereon, and dismissed all of the other claims. Plaintiff-appellant perfected the instant appeal.

On appeal, plaintiff-appellant contends that the trial court failed to dissolve the alleged sale of Lot Number Four from Gonzales Manufacturing & Industrial Machine Works, Inc. to Hilton J. Hoover, Sr. and failed to recognize it as the sole owner of said property. Defendant-appellee answered the appeal alleging that the trial court failed to declare Hilton J. Hoover, Sr. to be the sole owner of the property in question and failed to award him the damages prayed for.

“As between the parties, the general rule with reference to joint adventures or special partnerships is that the relationship arises only where the parties intended to associate themselves as such.” Daspit v. Sinclair Refining Co., 199 La. 441, 6 So.2d 341 (1942). See also Walker v. Delahoussaye, 116 So.2d 884 (La.App. 1st Cir. 1959) and Hero & Company v. Farnsworth & Chambers Co., 236 La. 306, 107 So.2d 650 (1958).

“There are no hard and fast legal rules fixing the requisites for a joint venture; each case must be considered sui generis and care must be exercised that consideration is given to the usages and practices characteristic of the particular commercial undertaking sought to be labeled a ‘joint venture’.” Hero & Company v. Farnsworth & Chambers Co., supra.

The specific facts of our case indicate that the parties involved had an implied contract to enter into a joint venture, the specific nature of which was to be a valve business. The parties themselves testified that they discussed the venture in great length and that they took steps to complete said venture, both expending time, energy, skill and money, individually and through their respective corporations. The parties always agreed that they would share in the profits and losses of their contemplated business, but it was not until November of 1976 that they could not agree as to the exact percentage each would have in said venture. It is at this point in time that the venture ceased, i.e., no agreement. Up until this time their actions were that of a joint venture and as owners in indivisión of the entire project. As found by the trial judge, although neither side kept very accurate records which would substantiate the exact contribution which each made to the venture pursuant to their contract or agreement, a fair approximation of all of the records is that the contributions of both were roughly equal. Therefore, the trial court was correct in dividing the property in half with each owning one-half in indivi-sión.

For these reasons the judgment of the District Court is affirmed at appellant’s costs and Gonzales Manufacturing & Industrial Machine Works, Inc. and Hilton Hoover, Sr. are declared to the owners in indivi-sión, in the proportion of an undivided one-half (V2) interest each, of the following ’described properties, to-wit:

(1) A certain tract or parcel of land, together with all buildings and improvements thereon or thereunto belonging, situated in the Parish of Ascension, in the Northeast Quarter of Section 20, Township 10 South, Range 3 East, Southeastern District of Louisiana, being more particularly described as Lot Four (4) of Gonzales Industrial Park, said Lot 4 being more particularly described as commencing at the northeast corner of vendor’s property, thence proceed in a southerly direction a distance of 167 feet to a point and corner; thence proceed in a westerly direction a distance of 300 feet to the point of beginning; thence proceed in a westerly direction along a street a distance of 100 feet to a point and corner; thence proceed in a northerly direction a distance of 155 feet to a point and comer; thence proceed in an easterly direction 100 feet to a point and corner; thence in a southerly direction a distance of 155 feet to the point of beginning. Said Lot 4 being bounded on the north by a 12 foot servitude along vendor’s northern boundary, a street on the south, Lot 3 on the east, and Lot 5 on the west.
(2) Together with all items of movable property located thereon and as described in the pleadings herein.

AFFIRMED.

      .Louisiana Civil Code Article 1779 provides:
      “Four requisites are necessary to the validity of a contract:
      1. Parties legally capable of contracting.
      2. Their consent legally given.
      3. A certain object, which forms the matter of agreement.
      4. A lawful purpose.”


author: LEAR, Judge.

text:
    Donald G. GALLENT d/b/a Donald G. Gallent and Company v. Kenneth R. WOMACK, Sr., and Deferred Compensation Corporation of America. Donald G. GALLENT d/b/a Donald G. Gallent and Company v. Kenneth R. WOMACK, Sr., and Deferred Compensation Corporation of Louisiana.
    Nos. 14604, 14605.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Joseph R. Raggio, Baton Rouge, for plaintiff-appellee Donald G. Gallent d/b/a Donald G. Gallent and Co.

      Daniel H. Taylor, Baton Rouge, for defendant-appellant Kenneth R. Womack, Sr., and Deferred Compensation Corp. of America.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   LEAR, Judge.

In these consolidated cases, plaintiffs, the certified public accounting firm of Donald G. Gallent d/b/a Donald G. Gallent and Company, and the individual partners of said firm (Gallent) sued defendants, Kenneth Womack (Womack), Deferred Compensation Corporation of America (DCCA) and Deferred Compensation Corporation of Louisiana (DCCL) on two promissory notes. Plaintiffs also sued DCCA and DCCL on unpaid accounts for professional services rendered by plaintiffs to the corporations. With regard to the suits on the promissory notes, defendants allege the affirmative defenses of duress in the execution of the notes and failure of consideration. Defendants further claim that the fifteen percent rate of interest contained in said notes is usurious and that the twenty-five percent attorneys fees in said notes is unconscionable. With regard to the unpaid accounts, defendants generally denied that any amount was owed to plaintiffs.

A judgment was rendered by the trial court in both suits in favor of plaintiff, Donald G. Gallent d/b/a Donald G. Gallent and Company and against the defendants in the full sum of both promissory notes together with the interest and attorneys fees contained therein and for an additional sum for the professional services rendered. The trial court, in lengthy and well-reasoned oral reasons for judgment, which we adopt in part, held as follows:

“Now, it appears that the audit for 1979 was engaged and agreed upon by a commitment dated July 13, 1979, wherein the terms of the arrangement were ‘invoices for our fees will be rendered monthly at a standard hourly rate and are payable upon receipt.’ The defendant does not deny that that was the basic arrangement. He contents [sic], of course, that the hourly rate was excessive. It appears that the representative of Donald G. Gallent and Company, Mr. Danny Lee, also a certified public accountant and a partner in that firm until October 31,1979, had nearly all of the dealings with Mr. Womack, and he told Mr. Womack that the range or parameter of charge per hour for the services of the firm would run from approximately $18.00 to $50.00 per hour, depending upon who was performing the services and the type of services to be performed. He did also make a statement to Mr. Womack that the charge for his services would be $35.00 per hour. This, of course, was essentially the arrangement and agreement between the parties.

“Now, insofar as the first defense, which relates to whether the note was signed under duress, it’s the defendant’s contention that he was contacted shortly before the end of the year, on December 28, 1979, when the notes were executed, by Mr. Gal-lent who said that he would not sign the audit and transmit the audit, which was absolutely necessary to fulfill the terms of his contract in the State of North Carolina and the State of Louisiana, unless these notes were executed. Let me say this: The law essentially is governed by Civil Code Article 1856 dealing with, of course, those things which invalidate the consent of a party. Code 1856 says:

“ ‘If the violence used be only by a legal constraint, or the threats only of doing that /which the party using them had a right to do, they shall not invalidate the contract. A just and legal imprisonment, or threats of any measure authorized by law and by the circumstances of the case, or [sic] of this description.’

“In Texas Company versus McDonald, [228 La. 353] 82 So.2d 37, the court held:

“‘To threaten to place one in default, preliminary dessertion [sic] of a legal right is not coercion or duress.’

“It would appear to me that even under the circumstances, even if we take the testimony of Mr. Womack as the correct and true version of what transpired, that that would not constitute the coercion, or duress, as described under the law. It would merely appear to the court that Mr. Gallent, for whatever reason best known to him, had the legal right at that point in time to insist upon the payment of his account, and the willingness, or unwillingness, of Mr. Wom-ack to sign the note would not be considered as coercion under the law, or the type of duress which could invalidate his execution of the two notes in question. So the court is of the opinion that there is no merit in that defense.

“Now, the next defense is a failure of consideration. Mr. Lee has testified in detail relative to the amount of time that was employed in performing the audit up until November 30,1979, which was the period of time covered by the two notes in question, and he also testified regarding the hourly rate. Mr. Womack, of course, indicated by his testimony that he felt the rate was excessive. The court is of the opinion in this matter that the plaintiff has carried his burden of proof insofar as showing the accuracy of the hours employed to perform the audit, and, of course, as to the rate which was charged. So the court is of the opinion that there has been satisfactory evidence that the consideration largely was satisfied. Of course, as to the claim that there was usurious interest the law, at the time in 1979 when the notes were executed, would not permit a 15 percent interest rate, but, of course, that has been interpreted to include interest charged to an individual, not in connection with a commercial business or transaction. In this case it was clearly, including the signature of Mr. Womack, in connection with a commercial undertaking, and would not fall within the purview of the article dealing with usury. Now, as far as the attorney’s fees of 25 percent, this is obviously on the high range of attorney’s fees for an amount such as this, but the court is unfamiliar with any cases which would set aside attorney’s fees of 25 percent for the nature and amount involved as being illegal or unreasonable, and, consequently, since it was a contractural [sic] obligation the court is of the opinion that it is valid.

“Now, we will turn to the question of the account for professional services which, in effect, is for the portion of the audit which was performed following December 1, 1979. The court, of course, has heard all of the testimony regarding the hours contributed and the work to be done, and, without belaboring the point in detail, the court finds no error except in one part. As I said before, Mr. Lee has testified that he told Mr. Wom-ack that he was going to be charged for his time at the rate of $35.00 per hour, and it appears that because of the dissolution of the partnership that it was required that the firm hire Mr. Lee on an individual basis as an independent contractor, and to that extent whatever time that he contributed in performing the audit subsequent to December 1, 1979, should have been billed at the same rate. According to the evidence it appears that Mr. Lee worked on the audit during December and contributed a total of 134.25 hours. To the extent that the charge was made for $45.00 an hour, $10.00 more an hour, the court is of the opinion that this amount was excessive. While the court has not divided the amount between the two suits, and is not real sure that it should be divided between the two suits, the court is of the firm conviction that the amount claimed should be reduced by the sum of $1,342.50, which is the amount of Mr. Lee’s services for December, 134.25 hours times $10.00 an hour. In all other respects the court is satisfied that the plaintiff has established and proven his claim that all of the work done was incurred and was properly performed, and that the audit was completed in a professional manner.”

After the rendition of the trial court’s oral reasons for judgment, there was some discussion of the fact that the evidence established that forty-four hours of Mr. Lee’s time had in fact been charged at the correct rate of $35.00 an hour. At that point, the court agreed and stated that the amount claimed should be reduced by the sum of $902.50, rather than the previously stated sum of $1,342.50.

We note that plaintiffs have answered this appeal seeking reasonable attorneys fees against appellants on the grounds of frivolous appeal. However, although we have found the judgment of the trial court to be correct, we do believe that valid issues were presented on appeal and therefore plaintiffs’ claim for attorneys fees for frivolous appeal are hereby denied.

For the foregoing reasons, the judgments of the trial court are affirmed. The relief sought by plaintiffs’ in their answer to this appeal is hereby denied.

APPEAL NO. 14,604: AFFIRMED.

APPEAL NO. 14,605: AFFIRMED.


text:
    Gloria ROBERTSON, George A. Robertson, Jr. v. PARISH OF EAST BATON ROUGE and City of Baton Rouge.
    No. 14647.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      James R. Coxe, III, Baton Rouge, for plaintiff-appellant Gloria Robertson and George A. Robertson, Jr.
    Ray C. Dawson, Daniel J. Dziuba, Baton Rouge, for third party defendant appellee Ramer’s Grocery, Inc.
    James J. Zito, Asst. Parish Atty., Baton Rouge, for defendant-appellee Parish of East Baton Rouge and City of Baton Rouge.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   CHIASSON, Judge.

Gloria Robertson and her husband, George A. Robertson, Jr., plaintiffs-appellants, appeal the judgment of the trial court dismissing their suit for damages sustained as the result of a one car accident. Named as defendants were the Parish of East Baton Rouge and the City of Baton Rouge, defendants-appellees, who filed a third party demand against Ramer’s Grocery, Inc.

Lot 15 is subdivided into Lots A and B. Lot A, which is bounded on its north by Jefferson Highway and on its west side by Inniswold Road, is subdivided into the northern portion and the southern portion. No fence or marking separates the boundary between the northern and southern portions of Lot A and the parking lots of the respective properties blend together.

Prior to construction of the parking lots on the northern and southern portions of Lot A, there existed an open ditch fronting Lot A and abutting Inniswold Road. The property owners laid concrete pipes and poured concrete over these pipes to make their driveways across the ditch to their respective parking lots. The driveways were located on the southern parts of the adjacent portions. The driveway for the northern portion was constructed up to approximately three feet of its southern boundary. Ramer’s Grocery is located on the southern portion of Lot A. Ramer’s Grocery, Inc., purchased this property from Joseph E. Price in 1978 after leasing said property from Mr. Price since 1962.

In 1975, Mr. Price constructed another driveway over the existing ditch on the northern end of his southern portion of Lot A. In fact, the driveway commences on the northern boundary of the property. Mr. Price’s construction of the new driveway resulted in an open ditch of approximately three feet in length between the old driveway of his neighbor and his new driveway.

The evidence reveals that the open ditch between the driveways is located on property owned by the Parish of East Baton Rouge.

The accident occurred around 6:00 P.M. on a dark, rainy night on May 29, 1979. According to Mrs. Robertson’s testimony, she turned off Jefferson Highway onto In-niswold Road and thereafter turned left into the neighbor’s driveway to go onto the parking lot of Ramer’s Grocery. As Mrs. Robertson proceeded to negotiate her turn, the right front wheel of her vehicle fell into the open ditch between the driveways, causing her personal injuries and property damage to her automobile. Mrs. Robertson’s testimony indicates that the hole was filled with water and, therefore, not visible to motorists.

The trial court found the City of Baton Rouge and Parish of East Baton Rouge strictly liable under Louisiana Civil Code Article 2317, but held that the defense of “fault of a third person” applied and, therefore, dismissed plaintiffs-appellants’ suit.

Plaintiff's-appellants perfected the instant appeal and allege that the trial court erred in rejecting their claim: 1) under Civil Code Article 2315 when the Parish of East Baton Rouge either had actual or constructive knowledge of the hazardous condition or trap-like condition of its property and neither warned those in danger nor repaired the defect after having four years to do so; and 2) under Civil Code Article 2317 on the ground of fault of a third person when that “fault” occurred four years prior to the accident and was not the sole or exclusive cause of the injuries.

Plaintiffs-appellants contend that the trial court erred in dismissing their claim under Civil Code Article 2317 on the ground of “fault of a third person”.

Louisiana Civil Code Article 2317 provides in pertinent part as follows:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody ...”

The Supreme Court, in the case of Loescher v. Parr, 324 So.2d 441 (La.1975), discussed the concept of strict liability and the legal basis for such liability as follows:

“When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others.”

In the case of Jones v. City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737 (La.1980), our Supreme Court discussed strict liability on the part of public entities and summarized the plaintiff’s burden of proof in strict liability actions in the following manner:

“Because the responsibility for preventing the unreasonable risk of injury to others is unconditional, the injured party seeking damages under article 2317 need not prove that any particular act or omission on the part of the defendant caused his injuries. He must only prove that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect — that is, that it occasioned an unreasonable risk of injury to another — and that his injury was caused by the defect.”
(Citations omitted)

Once the plaintiff proves custody, defect and causation, the custodian or guardian can escape liability only by showing the harm was caused by the fault of the victim, by the fault of a third person or by an irresistible force. Loescher, supra, and its progeny.

We agree with the trial judge’s findings that: the uncovered ditch was a vice and/or defect because, when filled with water, it gave the appearance of being a part of the driveways; the defect created an unreasonable risk of injury to others; Mrs. Robertson’s injuries were caused by said vice or defect; and the uncovered ditch was in the care and/or custody of the defendants-ap-pellees. However, we disagree with the trial judge’s finding that, since defendants-appellees did not construct the driveways which created the vice or defect, the defense of “fault of a third person” exonerates them from liability.

Our Supreme Court, in the case of Olsen v. Shell Oil Company, 365 So.2d 1285 (La.1979), explained the concept of “fault of a third person” which exculpates a custodian from strict liability. The court stated:

“The fault of a ‘third person’ which exonerates a person from his own obligation importing strict liability as imposed by Articles 2317, 2321, and 2322 is that which is the sole cause of the damage, of the nature of an irresistible and unforeseeable occurrence — i.e., where the damage resulting has no causal relationship whatsoever to the fault of the owner in failing to keep his building in repair, and where the ‘third person’ is a stranger rather than a person acting with the consent of the owner in the performance of the owner’s non-delegable duty to keep his building in repair.”
(Emphasis ours)

A litigant is bound by the allegations of facts contained in his pleadings. “An admission in a pleading falls within the scope of a judicial confession and is full proof against the party making it.” Smith v. Board of Trustees of La., 398 So.2d 1045 (La.1981); La. Civil Code Art. 2291; Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979). The pleadings, specifically the allegations of the third party demand filed by defendants-appellees against Ramer’s Grocery, Inc., clearly show that the “fault of a third person” which the trial court held to apply, does not exist in the present case. According to said pleadings, the new driveway was built by Mr. Price with the permission and consent of the defendants-appel-lees. Mr. Price is not a stranger acting without consent of the custodian and therefore his actions cannot be considered “fault of a third person” sufficient to exonerate defendants-appellees from their responsibility under Louisiana Civil Code Article 2317. Additionally, we cannot say that the resulting damage has no causal relationship to the fault of the owner, defendants-appel-lees. Defendants-appellees cannot exculpate themselves for a defect which they consented to four years ago and failed to remedy based on the “fault of a third person”.

Because of our holding herein we need not consider appellants’ other assignment of error.

As a result of the accident Mrs. Robertson’s face struck the steering wheel of her automobile. She was seen by a physician on two occasions who diagnosed her injury as “a bad bruise or a contusion of her chin and lower left face”. The swelling and the bruised areas had completely subsided when she was last seen by the physician on July 13, 1979. Treatment for her injury consisted of the application of ice packs and the taking of prescribed pills three times a day for approximately ten days. Damages for these injuries will be fixed in the amount of One Thousand and no/100 ($1000.00) Dollars. In addition, plaintiffs are entitled to the stipulated special damages in the amount of Nine Hundred Seventy and 39/100 ($970.39) Dollars. See Temple v. Liberty Mutual Insurance Company, 330 So.2d 891 (La.1976).

Ramer’s Grocery, Inc., in brief, argues that we are unable to consider defendants-appellees’ third party demand against it due to defendants-appellees’ failure to appeal or file an answer to the present appeal. Because the trial court dismissed plaintiff’s suit, there was no need for it to consider defendants-appellees’ third party demand. Code of Civil Procedure Articles 2083 and 2133 are not designed to require a successful party at the trial level to appeal simply because the appellate court may overturn the trial court’s final decision on the merits. Defendants-appellees were not under any necessity to appeal after having received a favorable judgment on the merits in the trial court. According to C.C.P. art. 2133:

“An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant ...”

Thus, under the clear provisions of this article, defendants-appellees were not obliged to answer the appeal since they did not desire to have such judgment modified, revised or reversed in part. See the Supreme Court’s original decree in Bond v. Commercial Union Assur. Co., 407 So.2d 401 (La.1981). The merits of the third party demand are therefore properly before us.

As to defendants-appellees’ third party demand, the record is devoid of any evidence which would establish liability on the part of Ramer’s Grocery, Inc. As stated hereinbefore, the construction of the driveway which created the vice and/or defect was accomplished by Ramer’s predecessor in title, Mr. Price, and not by Ramer’s Grocery, Inc.

For these reasons, we dismiss appellees’ third party demand against Ramer’s Grocery, Inc., reverse the judgment of the trial court and render judgment in favor of Gloria Robertson in the full sum of One Thousand and no/100 ($1000.00) Dollars and in favor of George A. Robertson, Jr. in the full sum of Nine Hundred Seventy and 39/100 ($970.39) Dollars and against the Parish of East Baton Rouge and the City of Baton Rouge, together with legal interest thereon from date of judicial demand until paid and for all costs of these proceedings in the amount of $466.08.

REVERSED AND RENDERED.


text:
    Ronald JOHNSON and Kenneth Johnson v. Wanda Jean BYRNE, et al.
    No. 14651.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Albert F. Richard, Plaquemine, for plaintiffs-appellants, Ronald Johnson and Kenneth Johnson.
    James H. Drury, New Orleans, for defendants and third party defendants-appel-lees, City of Plaquemine, Napoleon Dotson and Empire Fire and Marine Ins. Co.
    James B. Doyle, Baton Rouge, for defendants and third-party plaintiffs, appel-lees, Wanda Jean Byrne and Continental Ins. Co.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   CHIASSON, Judge.

Ronald Johnson, plaintiff-appellant, appeals the judgment of the trial court dismissing his suit for personal injuries which he sustained in an automobile accident. Named as defendants were the driver of the other car involved in the accident, Wanda Jean Byrne and her insurer, The Continental Insurance Company, along with the patrolman on duty, Napoleon Dotson, and his employer, the City of Plaquemine, ap-pellees herein.

Based upon the testimony of Officer Napoleon Dotson, defendant-appellee, the trial court found that the collision at the intersection of Louisiana Highway One in the City of Plaquemine and Schnebelen Street occurred as described by him. This intersection may be described as a “T” intersection with four lanes of Louisiana Highway One running north and south and perpendicular to Schnebelen Street. Pursuant to the orders from the Chief of Police, a patrolman is customarily assigned to assist motorists onto the highway at this particular intersection every day at noon.

Officer Dotson testified that he had halted southbound traffic on the highway and then turned to stop northbound traffic. His right hand was extended into the air to stop the northbound traffic and two cars had in fact come to a stop in the northbound right lane. The first was a truck which stopped and then turned right at the intersection just before the accident. Thereafter, he started flagging the cars to come out of Schnebelen Street and about six cars proceeded across the highway pursuant to his signal.

According to the testimony of Mr. Johnson who was following the two northbound vehicles as they began to slow down, he turned into the left lane to pass the vehicles and proceeded to cross the intersection, but he never saw Officer Dotson. Officer Dotson testified that while still flagging the vehicles from Schnebelen Street, the Johnson vehicle, coming at a pretty high rate of speed and not heeding his signal to stop, hit the vehicle driven by Ms. Byrne who, when she saw that a collision was imminent accelerated her vehicle in a vain attempt to avoid the collision.

As a result of said accident, Ronald Johnson sustained personal injuries which form the basis of the present suit. Additionally, Ronald’s brother, Kenneth Johnson, owner of the car driven by Ronald joined in the suit seeking compensation for property damage to his car.

Finding Ronald Johnson negligent in failing to see and obey Officer Dotson, the trial court rendered judgment in favor of the defendant-appellees and against Ronald Johnson, dismissing his demand against them. Since Kenneth Johnson did not sue Ronald Johnson, and Wanda Jean Byrne and her insurer did not file third party demands against Ronald Johnson, the trial court found only Wanda Jean Byrne and her insurer liable, in solido, to Kenneth Johnson in the amount of $1500.00, which represents the property damage to the automobile owned by Kenneth. The trial court held that Wanda Byrne did not use due care in proceeding into the intersection.

Ronald Johnson perfected the instant appeal and alleges that the trial court erred in concluding: (1) that he was contributorily negligent and that his negligence barred recovery against the defendants; (2) that Officer Napoleon Dotson was not the cause-in-fact of the accident and that the officer did not breach his duty to direct traffic safely; and (3) that Wanda Jean Byrne did not have the last clear chance to prevent the accident. Appellees have not appealed nor did they file an answer to the appeal taken by plaintiff-appellant. The sole issue in this appeal is therefore whether the trial court erred in dismissing plaintiff’s suit for damages.

In his reasons for judgment, the trial judge writes, “The Court believed the testimony of Napoleon Dotson and finds that the collision occurred as described by him.”

Appellate courts, unlike the trial courts, are not given the opportunity to view witnesses first-hand, see them testify and thereby evaluate their credibility. We are furnished only with a cold record with which to formulate our opinions. Thus, the rule has emerged in Louisiana that since trial judges are in the better position to reasonably evaluate the credibility of witnesses’ testimony, their factual findings based on such credible evidence, will not be disturbed on appeal unless manifestly erroneous or clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring, 283 So.2d 716 (La.1973); First State Bank & Trust Company of East Baton Rouge Parish v. Dalton’s Heating & Air Conditioning Co., Inc., et al, 408 So.2d 455 (La.App. 1st Cir. 1981).

From our review of the record as a whole, we find no error in the trial judge’s acceptance of the officer’s version of the way the accident happened. The officer’s testimony clearly establishes plaintiff-appellant’s negligence which was the proximate cause of the accident.

Plaintiff-appellant contends that Officer Dotson was the cause-in-fact of the accident. This assignment is without merit since the evidence clearly establishes that the cause of the accident was plaintiff-appellant’s failure to keep a proper lookout, and not any omission by the officer to safely direct traffic.

Plaintiff-appellant alleges that the trial court erred in concluding that Wanda Jean Byrne did not have the last clear chance to avoid the accident. The record indicates there were cars traveling in front of Ms. Byrne; traffic had been flowing across the intersection for approximately ten (10) seconds before the accident occurred; a car and a truck were stopped to her left in the right lane of the northbound lane of Highway One; as Ms. Byrne proceeded across the intersection pursuant to Officer Dotson’s command she saw the plaintiff-appellant approaching her from her left when her line of vision was cleared of obstructions; and upon seeing him she accelerated in an attempt to avoid the accident. Officer Dotson testified that plaintiff-appellant was traveling at an excessive rate of speed and not heeding his signal to stop. In view of these facts, Ms. Byrne did not have the last clear chance to avoid the accident.

For these reasons the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.