Bazile v. J. F. Landry & Co. , 10 La. App. 747 ( 1929 )

WESTERFIELD, J.

This case grows out of a collision between a Ford truck belonging to plaintiff, and a Dodge car belonging to defendant. The collision occurred about 7:30 P. M., December 23, 1927, on the Pointe-a-la-Hache roadway near English Turn, at a point where there is a curve in the road. Plaintiff claims $184.70 as damages to his truck, and the defendant reconvenes for $211.50, the amount of the damage, alleged to have been sustained by its Dodge car.

There was judgment below for plaintiff as prayed for and against defendant, dismissing its reconventional demand.

We find the facts to be as follows:

The Ford truck was proceeding towards Pointe-a-la-Hache, on the right, or proper, side of the roadway, at a moderate rate of speed, which as it approached the bend in the road was decreased. The Dodge automobile was being driven in a direction away from Pointe-a-la-Hache, and towards the city of New Orleans, on the left, or wrong, side of the road, at a rate of speed of about thirty-five miles per hour, without slowing its speed as it approached the turn. It follows from this finding of fact that the Dodge car was at fault, in that it was on the wrong side of the road and in failing to decrease its speed in the turn of the roadway.

It is argued, however, that the Ford truck was also to blame because, according to the evidence, the Dodge car was seen by the driver of the Ford truck at a time when the cars were sufficiently far apart to permit him to avoid the accident. In other words, defendant invokes' the doctrine of the last clear chance.

We are of the opinion that the doctrine is improperly invoked in this case. The fact that the driver of the Ford truck --aw the Dodge car at about 100 feet, as xs testified to, or at a greater distance, did not afford him an opportunity to avoid the accident. If it be suggested that le should have driven over to the left -sine of the road, in order to escape the Dodge car, the answer is that such maneuver would have been calculated to increase the danger of collision, since it must be assumed that the driver of the Dodge car would have sooner or later, ana in time to avoid the collision, taken his position on the proper side of the road. The driver of the Ford truck in seeing the Dodge car directly in his path, was justified in believing that he would pull, over to his right in time to avoid the accident. The Ford driver could not drive further to the right, without getting off the roadway and if he stopped his car, and the Dodge had maintained its position, as it did, the accident would have occurred just the same.

The amount of damages claimed doe^s not appear to be disputed, consequently the judgment appealed from is affirmed.