Emmco Insurance Co. v. Employers Mutual Liability Insurance Co. of Wisconsin , 1960 La. App. LEXIS 848 ( 1960 )

REGAN, Judge.

Plaintiffs, Henry Gervais, as the owner and operator, and his subrogee collision insurer, Emmco Insurance Company, instituted this suit against the defendant, Employers Mutual Liability . Insurance Company of Wisconsin, the liability insurer of Henry Rauber, whose vehicle was operated by his wife, Mae Rauber, endeavoring to recover the sum of $576.03, representing damages incurred by his vehicle on April 10, 1957 at about 3:30 p. m. as a result of an intersectional collision in Downman Road and Pines Boulevard.¹

Defendant answered and denied that Mrs. Rauber’s negligence was the proximate cause of the accident, and in the alternative, pleaded the contributory negligence of the plaintiff, Gervais.

From a judgment as prayed for, the defendant has prosecuted this appeal.

i*The record reveals as usual two contradictory versions of the manner in which the accident occurred.

Downman Road is a boulevard or thoroughfare having an ascending or river-bound and a descending or lakebound roadway, separated by a neutral ground. Pines Boulevard is a gravelled two-way street which intersects Downman Road.

Plaintiff Gervais related that he was driving in the left lane of Downman Road toward the lake at a speed of 28 or 29 miles per hour. As he neared the intersection of Pines Boulevard, he noticed a large dump truck 40 feet ahead in the right lane also moving lakeward. When the truck had cleared the intersection, plaintiff saw the car driven by Mae Rauber in about the center of the intersection. He immediately applied his brakes but was unable to avoid the collision. The left front of the defendant’s automobile collided with the right front of the plaintiff’s car.

Louise Von Aspern, a passenger in plaintiff’s automobile, appeared and related her version of the accident, which substantially corroborated the testimony of Gervais.

Mae Rauber, the operator of her husband’s vehicle, testified on behalf of the defendant and related that prior to the accident, she was driving in Pines Boulevard and when she reached Downman Road, she drove several feet therein to acquire a better view of the prevailing traffic. She then noticed the approach of a dump truck, which she insisted turned into Pines Boulevard and drove in the direction from which she had come. Since she intended to cross the lakebound Downman roadway and turn left into the riverbound portion thereof, she first carefully looked to see if any traffic was moving therein before starting her car. She then insisted that while she was stopped in this position her car was struck by plaintiff’s vehicle.

Thomas Paysse, a IS year old youth who concedes he was a friend of Mae Rauber’s son, fully corroborated all of the essential aspects of her testimony.

Frederick J. Hahn, the investigating police officer, appeared and testified on behalf of the defendant; however, his testimony proved to be of little assistance to the court.

The only question which was posed for both the trial court’s and our consideration by virtue of the foregoing résumé of the testimony is one of fact, which the judge below obviously resolved in favor of the plaintiff and our examination of the record fails to disclose any error in his conclusion that the accident occurred as a result of Mrs. Rauber’s driving suddenly from a position of safety into the path of Gervais’ vehicle at a moment when it was no longer within the realm of possibility for him to avoid the accident.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.

McBRIDE, J., takes no part.

1 . This street is erroneously designated as a boulevard. It is a two-way gravel street.