Warner v. Millers Mutual Fire Insurance Co. of Texas
Warner v. Millers Mutual Fire Insurance Co. of Texas
Opinion of the Court
The trial judge in his written reasons for judgment has so carefully and correctly disposed of the issues raised by this appeal that we adopt his opinion as our own. It reads:
“This is a tort action which resulted from an accident that happened on September 22, 1956, at the Gaylord Container parking lot in the city of Bogalusa. Involved in the accident was an automobile driven by D. P. Maples and the plaintiff in this suit, Woodrow W. Warner. The defendant Millers Mutual Fire Insurance Company of Texas was the liability insurer of Mr. Maples at the time of the accident; Mr. Maples is not a party to the suit.
“The allegations of the petition show that the Gaylord Container parking lot is a commonly used parking lot for the employees of Gaylord Container Corporation, and at the time of the accident numerous cars and trucks were parked throughout this parking area. It is further alleged that the parking lot was so laid out that there were several lanes extending in a northerly and southerly direction between Fourth Street on the north and Fifth Street on the south, lying between Avenue S on the west and Avenue T on the east, with specific area on both the east and west sides of each of such traffic lanes being reserved for motor vehicles to park therein.
“On the date of the accident it is alleged that the petitioner had left his work in the mill and was proceeding down the east side of Avenue S in a southerly direction, and turned in an easterly direction between the Credit Union building and the Acme canteen lunch stand in order to reach his automobile which was parked in the parking lot; that when he reached a point about 25 feet south of the southeast corner of the Acme canteen lunch stand he was struck by the front end of a 1953 Ford automobile operated by D. P. Maples, the defendant’s assured, which resulted in painful and permanent injuries to the petitioner. It is alleged that the defendant’s assured, Maples, was negligent in the following respects: (1) failing to stop at a commonly used cross walkway in a parking lot; (2) failing to sound his horn before proceeding into an area which he knew was used by numerous pedestrians going to their automobiles; (3) failing to see the plaintiff until after the time of the impact; (4) failing to have his lights on in rainy and stormy weather; (5) driving too fast in a heavily congested parking area where Maples should have known that numerous workers were moving in all directions to their automobiles; (6) failure of Maples to keep a proper lookout; (7) his failure to take proper precautions and using due care during the noon hour rush; (8) operating his automobile in a careless, negligent and reckless manner in an area of necessity used by the employees in reaching their parked automobiles, and (9) moving out of his lane of traffic and striking the petitioner. The petition further sets forth in the alternative, and only in the event the Court should find the plain-iff was negligent in any manner, that the defendant’s assured, Maples, had the last clear chance to avoid the accident by the use of proper care in keeping a proper lookout.
“Defendant in its answer denied its assured Maples was guilty of any negligence, and in the alternative, pleaded the plaintiff’s contributory negligence as a bar to his recovery; in the further alternative, defendant pleaded that the plaintiff had the last clear chance to avoid the accident and it was plaintiff’s negligence in failing to exercise same that constituted the proximate and immediate cause of this accident.
“The facts in this case show that this-accident happened shortly after the noon hour on September 22nd, 1956, at which' time it was raining; many of the employees-of Gaylord Container Corporation had-
"The facts reflect that while Mr. Warner was proceeding from the time office building to the point where he was struck that he was running with a large piece of Kraft paper held about six inches over his head with each of his hands, in order to keep from being wet by the rain. His testimony is to the -effect that he ran until he reached a point even with the south end of the Acme 'Canteen building and continued in a fast walk until the time he was struck; the distance from the south end of the Acme canteen building to the eastern edge of the traffic lane is shown to be 13 feet. It is further shown that on the eastern side, at the southeast corner, of the said Acme canteen building, a panel truck was parked some two feet east of the building and with the front of said truck in line with the southern edge of the building; this was a panel truck and was testified to have been about eight feet in width. It is further shown that on the south side of this Acme canteen building there was an automobile parked some 2 feet south of the building and almost even with the eastern edge of the Acme canteen building — of course, the Acme canteen building, together with the truck and car parked in the positions hereinabove related on the southeast corner of this building would necessarily obstruct the view of a person traveling south in the traffic lane some thirteen feet east of said building, in so far as seeing a person proceeding in an easterly direction some ten or twelve feet south of said Acme canteen building.
“When the defendant’s assured, Mr. Maples, and his passenger Hubert Strahan, got into Mr. Maples’ car at the northern end of said parking lot, Mr. Maples backed the car out and then proceeded south down the traffic lane in said parking lot; the car had traveled a very short distance, and as a matter of fact, was still in second gear and traveling, according to Mr. Maples and Mr. Strahan, at a rate of speed between fifteen and twenty miles per hour, and when it reached a point which I determine to be 22 feet south of the Acme canteen building, it struck Mr. Warner. The testimony of Mr. Strahan reflects that the car was traveling in the traffic lane south and when it reached a point where the front end of said car was even with the southern edge of the Acme canteen building, it was then that Mr. Strahan says he saw Mr. Warner, who was at that time some six feet east of the Acme canteen building and, of course, only about seven feet from the western edge of the traffic lane; Mr. Strahan’s testimony reflects he could not see Mr. Warner sooner due to the fact that his view was obstructed by the Acme canteen building and the cars parked at the
“There is a further dispute in this case as to the location of Mr. Warner after the accident. The witness Mr. Kennedy, who picked him up and placed him in the ambulance, testified that Mr. Warner’s feet were at the western edge of the traffic lane and his head and the remainder of his body .further ■ removed to the west — however, he admitted on cross examination that immediately after the accident he stated to defendant’s adjuster that Mr. Warner was in the western side of the traffic lane when he picked him up. Of course, it is plaintiff’s contention that the Maples automobile was out of the traffic lane at the time it struck Mr. Warner, but this is not borne out by the testimony of either Mr. Strahan or Mr. Maples, who were in the car at the time of the collision. I am convinced from the testimony that the car was in the traffic lane at the time of the collision and Mr. Warner had gotten into the traffic lane when he was hit. It is further apparent from Mr. Warner’s testimony that he never saw this automobile before it struck him, and his failure to see that which he should have seen constituted the negligence which was the proximate cause of this accident — thus, he cannot recover unless Mr. Maples, the driver of the automobile, had the last clear chance to avoid the accident. The last clear chance doctrine, of course, comes into play when the plaintiff has negligently placed himself in a situation of imminent peril and is either unconscious of the situation or unable to avoid the danger, but he may recover damages if the defendant could have avoided the injury after discovering plaintiff’s peril. (Blashfield’s Vol. 4, Sec. 2801, p. 386). Further, in order for this doctrine to apply the defendant must have had a last clear chance of avoiding injuring the plaintiff. Clear chance, of course, means in this respect a reasonable chance.
“From the above résumé of the testimony I am of the opinion that Mr. Maples, the driver of the assured automobile, saw Mr. Warner immediately after he ran out from the southeast corner of the Acme canteen building, which was as soon as he could have seen him, or otherwise he could not have stopped his car 26 feet south of the building while he was running at a rate of speed of between fifteen and twenty miles per hour. Under these circumstances, I feel that Mr. Maples did not have a last clear chance, or reasonable chance, of avoiding the accident, and accordingly, for that reason the last clear chance doctrine is not applicable herein. I have carefully read all the cases cited in plaintiff’s brief in connection with the last clear chance doctrine, and do not feel that any of them are applicable to the factual situation herein presented. Additionally, I do not feel that Mr. Maples was negligent in operating his car at a rate of speed of between fifteen and twenty miles per hour, and I am of the further opinion that the car was being operated in the traffic lane at the time of the collision. My conclusion is that Mr. Warner was not keeping a proper lookout and hastily entered the traffic lane immediately in front of this automobile at a time when defendant’s assured could not possibly have avoided hitting him. I recognize the fact that this was indeed an unfortunate accident, but irrespective of this fact, no person is entitled to recover when his injuries are brought about as a result of his own negligence, and the person operating the car which struck him had no last clear chance to avoid the accident.”
The judgment appealed from is affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.