Thompson v. Bourgeois

Le BLANC, Judge. This .suit was brought as a result of a collision between two automobiles which 'took place on the Old Spanish Trail near the village of Iowa, fourteen miles east of Lake Charles, on the night of September 5,1931. ■ Bourgeois, the defendant, had been to Lake Charles that afternoon and was returning to his home some fourteen miles east of the scene of the accident. The night was very dark and stormy. He had had some light trouble, all of the lights on his automobile going out at once. Instead of continuing on his journey, he turned around with the idea of going back to Iowa, where he intended to have his lights repaired. Thompson, the plaintiff, on his way from Franklin, La., to his home in Vinton, west of Lake Charles, was driving behind Bourgeois. Because of the rain, wind, and lightning, he had poor visibility at an appreciable distance ahead of him, and did not see defendant’s car in front of him, without lights, in time to pass entirely clear of it on his left, and he ran into it, his right back fender striking the front left fender of the other ear. His car was damaged considerably and he suffered personal injury according to the allegations of his petition. He sues for $1,000, of which amount, $424.85 is .for the damage to his car and $575.15 is for the personal injuries he claims to have sustained. Defendant admits the rainy and stormy condition of the night, and also that his car was, at the time of the collision, without lights. Nevertheless, he avers that plaintiff could easily have seen his car in the road, and had he had his own car under control, keeping a proper lookout ahead, and not have been driving at an excessive speed, could have stopped in time to avoid running into him. I-Ie claims that the defendant was negligent, and in a reconventional demand he seeks to obtain judgment against him for the damage to his car, amounting to the sum of $93.05, as he alleges. After evidence had been taken, counsel for defendant filed an exception of no cause of action. In brief before this court, it is stated that the exception was overruled in the lower court. The minutes of the court, however, fail to show that any action whatever was taken, and we will therefore disregard it. Evidently, the judgment of the lower court being in favor of the plaintiff, the exception must not have been considered as having much merit. The judgment allowed the plaintiff the amount claimed for the damage to his ear only, the court finding that there was no testimony to support the claim for personal injuries. The defendant having appealed, plaintiff answered the appeal asking for an amendment of the judgment so as to include the demand for personal injuries as well. In some respects the case might be considered from the same point of view as obtained in Futch v. Addison, 12 La. App. 535, 126 So. 590, Stafford v. Nelson, 15 La. App. 51, 130 So. 234, and Hanno v. Motor Lines, 17 La. App. 62, 134 So. 317, all decided by this court and referred to by the district judge in his written reasons for judgment hex-ein. The important feature of the blinding and glaring headlights of an approaching car in those cases is absent, but the weather conditions existing in the pi'esent case may be said to have rendered the situation, as far as visibility is concerned, just as if not more acute. In this case, moreover, the proof is convinc *709 ing that the plaintiff was traveling at a moderate rate of speed, a question which gave us perhaps the most concern in some of the cases cited. There is certainly no testimony to show here that the plaintiff was driving faster than twenty miles per hour. The fact that his car came to a stop in front of the defendant’s does not, in our opinion, sustain a charge of fast driving, as from the way in which the impact took place, it seems clear that it was his effort to pass to the left of the car ahead of him that brought the plaintiff’s car in front of the other when it came to a stop. We agree with the district judge that there Was no negligence on the part of the plaintiff and that he was as careful and prudent as the ordinary, average, and reasonable man would have been, driving under the conditions which prevailed that night. The evidence, on the other hand, points to the lack of prudence of the defendant. Of course, he found himself in an emergency which offers a plausible excuse for his driving without lights on his automobile; but, as properly held by the trial judge, this cannot absolve him entirely from legal responsibility. It was his greater duty, under the circumstances, to take greater precaution for the safety of traffic on the road. The testimony shows that he was occupying, as he drove along, more of the paved surface of the road than he should have been under the existing conditions. Had he been to the extreme right of the road instead of only seven or eight inches from the stripe in the center of the pavement, as was shown, the chances are that the plaintiff would have cleared him entirely when he went to pass him on the left. His being on that part of the paved surface of the road, without any lights or other signal'whatsoever, was the proximate cause ' of the accident, for which, as held by the district judge, he must answer for the damage that resulted to the plaintiff. We agree also with the lower court that the personal injuries sustained by the plaintiff were of so slight a nature that they need not be considered. The judgment appealed from is therefore affirmed.