Leineweber v. Grose , 1973 La. App. LEXIS 5921 ( 1973 )

JULIAN E. BAILES, Judge pro tem.

This is a tort action brought by the plaintiff to recover from the defendants damages allegedly arising out of a two-car collision on UI S. Highway 90 a few miles east of Raceland, Louisiana, on November 11, 1967.

The trial court rejected the plaintiff’s demands. The plaintiff appeals that adverse judgment. From our review of the record, we find no manifest error in the judgment of the court a quo and, accordingly, the judgment appealed is affirmed at appellant’s cost.

' There is irreconcilable conflict between the plaintiff’s version of how the accident occurred and the defendant’s version. The fact witnesses who appeared for the respective parties were all passengers in the two vehicles.

The facts are that both vehicles were travelling west on U. S. Highway 90. Apparently the contact between the vehicles was slight and involved the left side of plaintiff’s vehicle making contact with the right side of the defendant’s vehicle. The accident occurred near the convergence on the highway of the four lanes into two lanes.

The plaintiff and his passengers testified that plaintiff’s vehicle was on the two lane portion of the highway and was sideswiped by defendant’s vehicle when defendant attempted to pass plaintiff, and that the accident occurred immediately west of the point where the highway merges into two lanes.

The defendant and his passengers testified that the accident occurred about one block, or 300 feet, east of the point of convergence from four to two lanes. These witnesses, including the defendant, testified that plaintiff was in the right lane and defendant’s vehicle was in the left lane; that as the defendant pulled alongside plaintiff to pass him, the plaintiff drove his automobile in the left lane and into the right side of defendant’s vehicle.

Although the trial court did not assign written reasons for its holding, it is apparent to this court that the trial court found that the plaintiff had not sustained the burden of proving that the accident and alleged resulting damages were caused by the negligent operation of defendant’s vehicle.

The plaintiff has the burden of proving by a preponderance of the evidence that the accident was caused by the actionable negligence of the defendant. The trial court saw, heard and observed the witnesses, and its finding of fact will not be overturned in the absence of a finding of manifest error.

For these reasons, the judgment appealed is affirmed, at appellant’s cost.

Affirmed.