Pinard v. State Farm Mutual Insurance , 1962 La. App. LEXIS 1425 ( 1962 )

LUTHER E. HALL, Judge pro tem.

Plaintiff sued for damage to his automobile which he alleged was occasioned by its being struck from the rear by an automobile driven by Mrs. Bernadette S. Roane. The defendant is the liability insurer of the Roane vehicle. Judgment was rendered in plaintiff’s favor for $163.07 and defendant appealed.

The accident happened on the Chef Menteur Highway about 3 :30 P.M. on October 30, 1960. It was drizzling at the time but -visibility was good. The highway at the point of the accident consists of two east-bound and two west-bound traffic lanes divided by a neutral ground.

Plaintiff was the only witness called in his behalf. He testified that he, accompanied by his wife and four small children, was driving east in the left or neutral ground lane of the highway intending to turn left at Wright Road. He further testified that he had been driving in the left *ane for perhaps a mile when his wife was sitting beside him on the front seat cried “She’s going to hit you”; that he looked in front but saw no one, and then in his rear view mirror but saw no one, and about that time he was struck in the right rear by what turned out to be the Roane car. He testified that his car had apparently been struck on the right end of his rear bumper which was driven into his right rear fender damaging the fender and the rear quarter panel on that side.

Judging from the allegations of his petition, plaintiff’s theory of the case is that the Roane car was following him in the left lane and hit him a glancing blow in attempting to pass him on the right. However, plaintiff never did see the Roane car prior to the accident. His wife did not tell him where she saw the car and he testified that although he had frequently looked in his rear vision mirror he had never seen any car following him in the left lane.

Mrs. Roane and her passenger, Mrs. Scott, both testified that they were proceeding out the highway in the right traffic lane; that plaintiff’s car which was in front of them proceeding in the left lane suddenly pulled over into their lane; that Mrs. Roane blew her horn, immediately applied her brakes and tried to swerve her car to the right. They testified that this caused the Roane car to skid sideways into plaintiff’s car, the left rear of the Roane car coming in contact with the right rear of plaintiff’s car causing minor damage to plaintiff’s bumper and fender. The Roane car showed no damage. Both cars were being driven within the speed limit.

Plaintiff never saw the Roane car prior to the accident. His wife, who did see it, was not called as a witness although she was in the city and was available. Under the circumstances we are obliged to give full effect to the undisputed testimony of Mrs. Roane and Mrs. Scott, since it is not inherently unbelievable.

Plaintiff has failed to show any negligence on the part of Mrs. Roane. On the contrary the testimony shows that plaintiff was the one at fault and that Mrs. Roane did everything possible to avoid the accident.

For the foregoing reasons the judgment appealed from is reversed and plaintiff’s suit dismissed, plaintiff to bear all costs in both courts.

Reversed.