Opinion
No. 956.
October 30, 1963. Rehearing Denied November 20, 1963. Writ Refused January 20, 1964.
APPEAL FROM FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, STATE OF LOUISIANA, HONORABLE CLEMENT M. MOSS, J.
Nathan A. Cormie Associate, by Payton Covington, Lake Charles, for plaintiff-appellant-appellee.
Cavanaugh, Hickman, Brame Holt, by Meredith T. Holt, Lake Charles, for defendant-appellee-appellant.
Before FRUGÉ, SAVOY and CULPEPPER, JJ.
The plaintiff, Robert J. Boyle, Sr., filed this suit on behalf of his minor son, Robert J. Boyle, Jr., eighteen years of age, for damages for personal injuries received by young Boyle in a collision between his motorcycle and an automobile being driven by Mr. John P. Micelle, Jr. The defendant is Travelers Insurance Company, liability insurer of the automobile. In the district court a jury awarded plaintiff, individually, the sum of $2,700.00 (for medical expense and special damages), and on behalf of his minor son, the sum of $2,300.00 (for pain, suffering and disability to young Boyle). Plaintiff appealed devolutively, asking an increase in the award. Defendant appealed suspensively, asking a reversal of the lower court judgment.
The facts show that at about 3:30 P.M. on March 23, 1962, during clear, dry weather, the plaintiff's minor son, Robert J. Boyle, Jr., was driving his motorcycle south on Ryan Street in the City of Lake Charles, approaching 17th Street which forms a T-intersection from the east with Ryan Street. At this particular location, Ryan Street is 60 feet in width, containing 2 northbound and 2 southbound traffic lanes, each side being 30 feet in width. When he reached a point about 30 feet south of the intersection of 17th Street, which point is immediately in front of the display room of W.F. Wilson Motor Company on the west side of Ryan Street, young Boyle collided with the extreme right rear of the Micelle automobile, which had been traveling north on Ryan Street and had made a left turn to go into Wilson Motor Company. The point of impact was 3 1/2 to 4 feet from the west edge of Ryan Street. The front of the motorcycle struck only the rear 1 foot of the right rear fender and bumper of the automobile. The front portion of the Micelle vehicle was on the parking apron of Wilson Motor Company at the time of the collision. As a result of the accident, Robert Boyle, Jr. sustained a compound fracture of the lower portion of his right tibia and fibula, requiring open reduction, prolonged hospitalization and medical care with skin grafts and leaving the leg permanently partially disabled.
The first issue is whether the driver of the left turning automobile was negligent.
In the recent case of Moorehouse v. Gallow, (La.App., 1 Cir., 1963), 156 So.2d 62, the court stated the general rule of law as to a driver making a left-hand turn, to-wit:
"'Under the well settled law of this State, the driver of a motor vehicle who attempts to make a left turn on a public highway must ascertain before doing so that the turn can be made in safety. Leonard v. Holmes and Barnes, Ltd., 232 La. 229, 94 So.2d 241 (1957); Washington Fire Marine Insurance Co. v. Fireman's Insurance Company, 232 La. 379, 94 So.2d 295 (1957); Johnson v. Wilson, 239 La. 390, 118 So.2d 450 (1960); LSA-R.S. 32:236 (A). Also, a motorist intending to make a left turn on a public highway must not be content with merely holding out his hand or putting on his directional signal light, but he should look before turning to first see if such movement can reasonably be made in safety. Johnson v. Wilson, 239 La. 390, 118 So.2d 450 (1960); Jenkins v. Fidelity Casualty Company of New York (La.App., 1 Cir., 1957), 92 So.2d 120; Johnson v. Southern Farm Bureau Casualty Insurance Co. (La.App., 3 Cir., 1960), 124 So.2d 331.'"
In the instant case, Micelle could have avoided the accident by driving in the driveway of Wilson Motor Company with more caution and waiting until the motorcycle had passed to his right before attempting to cross Ryan Street. This Court is of the opinion that he was grossly negligent in not exercising more care in negotiating the left-hand turn.
The next question for determination is whether the plaintiff's minor son was contributorily negligent so as to bar recovery in the instant case.
Boyle testified that he was driving his motorcycle within the speed limit (35 miles per hour) in a southerly direction on Ryan Street, and that the driver of the car, Micelle, darted out in front of him so that he was unable to avoid the accident. Plaintiff and two witnesses working for Wilson Motor Company stated that plaintiff's minor son looked momentarily to the left prior to the accident. The jury heard all of the witnesses, and, apparently, believed the testimony of young Boyle. Defendant did not ask for a new trial prior to the signing of the judgment in the district court. We therefore conclude that under the evidence in the instant case there is sufficient evidence for the jury to find that Boyle was not contributorily negligent, and we so hold.
Plaintiff has asked for an increase in the award as to his minor son's injuries sustained in the accident. The jury awarded him $2,300.00. We are of the opinion that in view of the serious injuries suffered, which have been detailed in this opinion, the jury award was inadequate and should be increased to the sum of $7,500.00.
For the reasons assigned, the verdict of the jury and the judgment of the district court is amended by increasing the award to plaintiff for the use and benefit of his minor son, Robert J. Boyle, Jr., from the sum of $2,300.00 to $7,500.00; as thus amended, the judgment is affirmed in all other respects at appellant's costs.
Amended and affirmed.
CULPEPPER, J., dissents with written reasons.
On application for rehearing, able counsel for the defendant suggests that this court erred in failing to give proper probative value to the testimony of two eye witnesses who corroborated the version of the accident given by Micelle, the defendant's insured. It is also suggested that the plaintiff Boyle's minor son was contributorily negligent in failing to take evasive action, even though he admitted that he saw the Micelle vehicle slow down prior to the accident.
Ultimately, the trial jury was forced to decide which was the more accurate or more truthful of the two versions of the accident: (a) that of young Boyle, who testified that as he proceeded on his own side of the street he saw Micelle vehicle coming from the opposite direction in its own lane slowing, but that Micelle instead of stopping, suddenly darted across his path, so that he was unable to avoid the accident; or (b) that of Micelle, to the effect that young Boyle was paying no attention and simply without slackening speed drove his motorcycle into the rear end of the Micelle vehicle as it turned across his path.
We find no error in the trial jury accepting the version of young Boyle. It is obvious that the testimony of witnesses as to the split-seconds or feet distant involved during the second or so of crisis preceding an accident, are at best only estimates. The essential gist of young Boyle's story believed by the trial jury was that Micelle suddenly and without warning made a left turn from Micelle's lane across young Boyle's path in young Boyle's lane, at a time when young Boyle was so close that he could not reasonably have avoided the accident.
The evaluation of credibility is primarily a function of the trier of fact, and we find no manifest error in the trial jury's accepting young Boyle's version over that contended for by the defendant.
We may add that young Boyle, proceeding in his own lane of traffic, could not be considered negligent for failing to take evasive action simply because he saw Micelle in the opposite-bound lane approaching and slowing (to make a left turn, as it turned out, although Micelle did not make a left turn signal). Young Boyle was under no duty to anticipate that Micelle would leave Micelle's lane and cross suddenly without warning into young Boyle's path, in the lane of traffic in which young Boyle had a right to be, and in which Micelle suddenly entered without warning, despite young Boyle's superior right of way.
As to the damages, the trial jury only awarded $2,300 general damages for young Boyle's very serious, painful, and permanently disabling leg injuries. Although the trier of fact has very great discretion in the award of such damages, and although such discretion should not be disturbed upon appellate review in the absence of a clear abuse of discretion (Gaspard v. Lemaire, La., 158 So.2d 149; we found that the trial court jury clearly abused its discretion in making this minimum award for such major injuries, and we increased such award to $7,500. Despite the suggestion that such increase is inconsistent with the recent decision of the Supreme Court in Gaspard v. Lemaire, cited above, we remain convinced that there was a clear abuse of discretion in the small award given for such injuries, so that the plaintiff is entitled to an increase in accordance with the majority opinion of this court.
The application for rehearing is denied.
Application denied.
CULPEPPER and HOOD, JJ., are of the opinion a rehearing should be granted.
I agree with the majority that the defendant's insured, Mr. Micelle, was negligent in making a left turn at a time when the approaching motorcycle was so close that it was unsafe. Mr. Micelle simply didn't see the motorcycle, but it was in plain view and he should have seen it.
However, I think the evidence also shows clearly that young Boyle was guilty of contributory negligence, barring his recovery. Boyle gave conflicting versions of the accident. He first testified that he was traveling south, in the outside lane of traffic, at a speed of about 30 miles per hour and that he saw the approaching Micelle automobile slow down, but he denies that it stopped; that he then saw the Micelle vehicle begin its left turn but the turn was made so quickly that Boyle was only 15 feet away by the time he realized a collision was unavoidable; that he did not have time to apply his brakes or take evasive action.
This version of the accident cannot be reconciled with the physical facts. It must be remembered that when Micelle turned left he crossed not one but two lanes of traffic, a total distance of 30 feet, and then drove all but about 4 feet of his automobile up on the apron in front of Wilson Motor Company before the motorcycle struck the extreme right rear of the automobile. If, approaching at a speed of 30 miles per hour, young Boyle was observing the Micelle vehicle the entire time it turned left and traversed this distance, it is inconceivable that Boyle did not realize the danger in time to apply his brakes and stop or at least to change his course to the left the few feet necessary to avoid the accident.
Apparently realizing the weakness of this version of his actions, young Boyle later contradicted himself by testifying that he "may have been looking off to see if there were any cars that might pull off 17th Street." As stated in the majority opinion, 17th Street intersects Ryan Street on the east about 30 feet north of the point of impact. Young Boyle did not make it clear whether he meant that he looked off to his left after he saw the Micelle automobile start its left turn, or whether he meant that he did not see the automobile at the time it turned left. However, in either event, Boyle's lookout was deficient. As regards the duty to observe the road ahead, the court stated in Jackson v. Cook, 189 La. 860, 181 So. 195 "* * * the duty of those in charge of motor cars and engines to look ahead and observe never ceases; that what they can see they must see and in legal contemplation they do see;" "that their failure to see what they could have seen by the exercise of due diligence does not absolve them from liability." I have been unable to find any case which excuses a motorist's deficient lookout ahead, on the grounds that he momentarily looked aside.
It is my conclusion that these contradictory versions of the accident given by young Boyle are absolutely irreconcilable with the physical facts. If he saw the Micelle automobile turning left in his path, he had plenty of time to avoid the accident. If he did not see the Micelle automobile, he is guilty of negligence in failing to keep a proper lookout ahead.
The defendant has shown by an overwhelming preponderance of the evidence that actually young Boyle was looking off to his left and simply did not see the Micelle vehicle. The defendant introduced the testimony of two eyewitnesses, both of whom were in the display room of Wilson Motor Company, only 40 feet from the point of impact. These two witnesses testified positively that they saw Micelle stop in the inside northbound lane of traffic, to let some oncoming traffic go by; that then Micelle started a left turn and just as the automobile was almost completely up on the apron in front of Wilson Motor Company, they saw the motorcycle coming "at a rather fast pace" near the west edge of Ryan Street. These two witnesses testified further that the boy on the motorcycle was looking to his left; that he apparently did not see the Micelle automobile; that without slackening speed, applying his brakes, or attempting to turn, he drove his motorcycle headlong into the rear end of the automobile.
This testimony is corroborated by the physical facts found by the investigating police officer. From debris and other physical evidence found at the scene, the investigating officer placed the point of impact at 3 1/2 to 4 feet from the west side of Ryan Street. The officer found no skidmarks or other evidence to show that the motorcycle had applied its brakes or taken any evasive action.
The applicable law is stated in 38 Am.Jur. 865, Verbo Negligence, Sec. 189: "Every person is bound to the exercise of vigilance with a view to the discovery of perils by which he may be menaced and their avoidance after they have been ascertained. Every person is bound to use due diligence to save his person from injury by the negligent act of another. The acts required to be done with a view to the preservation of safety will depend, necessarily, upon the circumstances of the case, as weighed by the rule of ordinary and reasonable care and the standard of the ordinary prudent person * * *" As a general rule, one must exercise the same degree of care for his own safety as is required by another who is under a duty to protect him against injury. While due care for one's own safety does not require the exercise of the highest possible degree of care or the anticipation of events which, while possible, are only slightly probable, the test is what a reasonably prudent person would have done under the circumstances. See 38 Am.Jur. 866, Verbo Negligence, Sec. 190.
The case of Bergeron v. Department of Highways, 221 La. 595, 60 So.2d 4 is very similar. There, a truck driver, turning left off a city street, failed to notice a bicyclist on the sidewalk. In denying recovery the court held the bicycle rider should have observed the danger in time to avoid the accident.
A further factor which I have considered is that the jury verdict in this case was obviously what is often referred to as a "compromise verdict". The award of $2,300, for young Boyle's very serious, painful and permanently disabling injuries to his leg, was manifestly inadequate. A compromise verdict should be given very little weight by the appellate court.
For the reasons assigned, I respectfully dissent.
On Application for Rehearing.
En Banc.