Dozart v. F. Strauss Sons

I have carefully studied the record in this case and reluctantly dissent from the finding of fact of the majority on the paramount questions of negligence and preponderance of proof. I am not convinced that the accident happened in the manner testified to by plaintiff. The burden was on him to establish his case by a clear preponderance of the testimony. I am more nearly convinced that the collision occurred in the manner contended for by defendant. Surely that contention of the two is the more strongly supported by the laws of physics and the common experience of persons who operate, or observe the operation of, motor vehicles in and upon curves and tangents on blacktopped highways made slippery by rainfall. The majority opinion does not fully describe the physical conditions about the road immediately south of the point of impact, nor the curve out of which the light truck of plaintiff was about to emerge when the collision occurred. South of the point of impact the highway describes a nine-degree curve to the left (east) which is considered by engineers to be sharp. Along the concave (east) side of the segment there is a growth of pine trees and underbrush of sufficient density to materially interfere with clear vision northerly by a motorist while on the lower (south) side thereof. The Strauss truck had not entered the curve at all. It was approaching the spot where the accident occurred on a tangent of several hundred feet. Its operators could not well see beyond the obstruction to view in the curve's concave side. Plaintiff's vision was obscured measurably by the same obstruction as he rounded the curve towards the south end of the tangent. He was then, in my opinion, on the convex side of the curve. The most natural thing for him to have done when he suddenly observed the truck coming towards him a short distance ahead was to try to get on his side of the highway by endeavoring suddenly to reduce his truck's momentum. In the effort to do this he made the error of applying the brakes. All persons of experience know too well the effect forceful application of brakes will have on a rapidly moving light motor vehicle on a slippery road surface. The vehicle under such conditions will act exactly as Loftin says plaintiff's truck did immediately before the collision. On the other hand, it would be most unusual and unnatural for a heavy truck, with trailer, equipped with dual wheels, traveling on a perfectly straight highway, to act as plaintiff says defendant's did for some seconds prior to the collision.

The physical injuries to the Dozart truck, in their main features, strongly support Loftin's testimony when he said that the light truck skidded almost crosswise the road and was rammed by his big truck when in this position. The left rear fender of the light truck was ripped from its connection with the running board and crumpled against the truck's body. The end of the running board was tilted slightly upwards. It sustained no other injury. Had the damage been done by a sideswipe, the running board's injury would have been of a different character and much more serious, and the fender would have been sheared away instead of being rammed against the body. Again, the metal covering on the rear side of the cab was mashed in toward the front. Such an injury was impossible from a direct contact from the approaching truck. My theory of this particular injury is that it was caused by the violent swinging of the light truck against the wall enclosing the bed of the Strauss truck when the front end of the latter struck the former violently over its left rear wheel. The handle of the door of the light truck was uninjured. A sideswipe would most likely have sheared it from the door.

As regards the tracks of the Strauss truck on its right shoulder of the road about the point of the accident, we quote the testimony of Mr. H. E. Swinney, a civil engineer, then engaged in highway construction in Louisiana, to wit:

"A. The north side, in other words the truck coming this way had not entered the curve, the Strauss truck rather, and apparently the pick-up truck had gone around the curve and the Strauss truck was off the road with the front wheels buried in the ditch. It appeared that they were on the right side of the road coming this way and they got off the road to avoid an accident, and the front wheels were buried in the ditch on the right side, and the trailer part was still back on the road. It looked like they had gone on this shoulder for perhaps 40 or 50 feet in getting in this ditch. * * *

"Q. Did you observe any skidding marks on the highway in either direction? A. You could see the track where the big truck came from Monroe, and they got off on the shoulder, apparently as far as they could get, and then they went in the ditch."

This testimony, given by a highly intelligent college graduate, who has no interest of any character in the outcome of this suit, speaks for itself.

I do not think the position of the light truck after the collision specially significant. The physical movements of such a vehicle, when struck violently by another many times its weight, moving rapidly, cannot always be accounted for.

Had the Strauss truck sideswiped the other one, going 50 miles per hour downgrade, the former would not have stopped where it did, not much over its length and that of the trailer, from the point of impact.

The testimony of the witness La Prairie should be rejected. It is so unreasonable and his actions at time of accident, according to his own statement, so unnatural for a normal person, that we think it of no probative worth. He would have the court believe that he stopped his truck two blocks from the accident to look for scrap iron in the open pine woods; that he saw the collision and the following commotion; saw two injured and unconscious person's taken from the truck, and yet he complacently stood aloof, unwilling to yield to the impulses that must have urged him, if normal, to rush to the aid of the distressed. After the injured were driven away, he summoned courage enough to go to and view the scene. He gave this rather interesting testimony in explanation of his conduct, viz:

"Q. Mr. LaPrairie, couldn't you tell the people were hurt down in that accident? A. Well, I didn't want to run myself on down into it.

"Q. You were afraid you might get involved in it or something? A. Well, you can't ever tell.

"Q. And how long did you stand there and wait? A. I waited until they picked the people up and left."

When the conclusion is reached that La Prairie did not see the accident, plaintiff's case automatically topples. The need of the corroboration which his testimony is designed to supply is obvious. See Serpas v. Collard Motors, La.App., 178 So. 261, 264.

In reducing to writing the reasons for our dissent herein, we are not unmindful of the well-established rule that a trial judge's decision of factual questions should carry much weight and should not be overruled except when manifestly incorrect. The rule is a sound one. However, it is of common knowledge to bench and bar that reversal of trial courts on questions of fact are of rather frequent occurrence.