Opinion
No. 4234.
June 29, 1956.
APPEAL FROM NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA, HONORABLE JESS JOHNSON, J.
L.C. Parker, J. Peyton Parker, Jr., Baton Rouge, for appellant.
Taylor, Porter, Brooks, Fuller Phillips, Baton Rouge, for appellees.
This suit is brought in forma pauperis to recover damages sustained in an automobile accident. The plaintiff Estelle Burton Williams, was a passenger in a truck being driven by her husband when it collided with another vehicle at about 12:25 a.m. on January 9, 1955. The husband's employer, his liability insurer, and one Robert J. Burns, were joined as defendants.
The District Court dismissed plaintiff's suit at her cost, but the judgment makes no mention of the defendant Burns. From this judgment the plaintiff has appealed.
The plaintiff was riding on the front seat of a panel truck being driven by her husband, which was traveling north on the Perkins Road in East Baton Rouge Parish. The driver of the truck observed a vehicle approaching from the north with only one head light. When the vehicles approached the same spot, the other automobile left its right side of the road and struck the left rear fender of the truck, causing it to run into a ditch and over-turn, when the plaintiff was injured.
The plaintiff herself testified she saw the oncoming automobile a very short distance before the collision; that her husband was driving on his right side of the highway at a slow rate of speed and that there was nothing whatsoever he could do to avoid the accident. Her testimony further shows that there was nothing unusual, other than the one light, to give her husband any warning of an impending collision, and that he could not pull any further to his right since there was a line of trees to prevent this maneuver; also that the truck turned over immediately after the collision.
The testimony of Williams himself, shows that he was driving in a careful and prudent manner, noticed the approaching vehicle, pulled to his right, and when the approaching car was about 20 feet away it pulled to its left and struck the left rear fender of the truck, knocking it into the ditch, where it over-turned. He stated positively that he could have done nothing to avoid the accident and was not warned in any manner that the approaching car would turn to its left.
There were two other witnesses who were riding in the rear of the panel truck in a double rocking chair. The testimony of one, Willie Lee Burton, is that he noticed the car approaching immediately before the accident and that it had only one head light; also that Williams was driving in a careful and prudent manner; that Williams pulled the truck to its right just before the collision; and that the truck was struck on the rear fender and over-turned almost immediately. Josephine Collins, the other passenger, testified she noticed the car approaching with only one head light; that the accident happened almost immediately; that Williams pulled the panel truck over to the right and that his speed was reasonable.
The only other witness was an officer of the Police Department of Baton Rouge. He stated he was never able definitely to identify the driver of the vehicle which collided with the truck and could not locate the point of collision between the vehicles from any physical evidence.
The whole record discloses absolutely no negligence upon the part of Williams and the judgment is correct insofar as it so found.
The judgment makes no mention of the defendant, Burns, although an answer was filed by Robert J. Burns, who denied all of the allegations concerning his liability upon lack of sufficient information to justify a belief. We are of the opinion, since he was never identified as the driver of the other vehicle, that the judgment should absolve him also from any liability. Appellant's brief states it "could not be established to the satisfaction of any Court" that he was the driver of the other vehicle.
The suit was brought in forma pauperis, but the judgment assesses costs against the plaintiff. This is incorrect since no objection to this proceeding appears in the record.
For the reasons assigned, the judgment of the District Court is amended by dismissing plaintiff's suit as to all defendants, and further by absolving the plaintiff of the payment of any costs whatsoever.