Carlisle v. Louisiana Oil Refining Corp. , 1926 La. App. LEXIS 80 ( 1926 )

REYNOLDS, J.

OPINION.

The defendant in this case was undoubtedly guilty of gross negligence. The question to be decided is, does the gross negligence of defendant excuse plaintiff’s contributory negligence.

Plaintiff’s evidence as to how the accident occurred is found in the testimony of H. B. Rogers, pages 3, 4, 5, 10.

“Q. State how it occurred, how this accident occurred?

“A. Well, there was a car passed right ahead of me, went around me and stirred up a great lot of dust there, and so I went on the bridge,, and I got in about fifteen feet of this truck before I saw it, so when 1 saw it I put my brakes on, but we didn’t stop before we hit.”

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“Q. I will ask you what, if anything, prevented your lights from showing the presence of the truck any sooner than they did?

“A. Well, it was the dust and the truck was coming from around the curve, too.”

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“Q. Was it going pretty fast when it hit you or had it slowed down?

“A. He had slowed down; wasn’t going fast when we hit.”

Both occupants of the truck testified that the truck had stopped and was standing still at the time of the accident.

“Q. When you got onto the bridge the dust from this car was still very dense?

“A. Yes, sir.

“Q. So dense that the rays from your headlight wbuldn’t penetrate it?

“A. Oh, yes, it would to a certain extent, yes, sir.

“Q. How far?

“A. Well, I don’t know exactly; I couldn’t hardly say.

“Q. Approximately how far?

“A. I think maybe twenty or twenty-five feet, something like that.”

“Q. Driving at the rate of fifteen miles an hour, how far wipuld it take you to stop the ca,r in an emergency, that car on that road?

“A. Well, it would take about fifteen feet to stop it.

“Q. You could have stopped that car in an emergency in about fifteen feet?

“A. Yes, sir, something like that.”

Prom this testimony of the driver of plaintiff’s automobile it appears that he could have seen defendant’s truck without lights on it fifteen or twenty feet away and could have stopped his car in about fifteen feet. Had he done so the accident would not have happened, for he could have stopped his car before it reached the truck. Under this condition We are not prepared to say that the driver of plaintiff’s car was not guilty of contributory negligence when he not only failed to stop his car before running into the truck, but struck the truck with such force as to cause damages to the car, according to plaintiff’s petition, in the sum of $521.44.

The question as to whether or not the driver of plaintiff’s car contributed by his negligence to the accident is one of fact to be determined by the evidence in the case. In this case, the judge who saw and heard the witnesses testify decided the issue of fact in favor of the defendant. Under all the evidence in the case, we think his finding of fact is entirely correct, and it is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed.