Opinion
No. CA 0144.
February 10, 1983. Rehearing Denied April 27, 1983.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE RICHARD C. GARVEY, J.
Edward L. Ardoyno, Jr., Metairie, for plaintiffs-appellants.
Porteous, Toledano, Hainkel Johnson, C. Gordon Johnson, Jr., New Orleans, for defendants-appellees.
Before LOBRANO and WARD, JJ., and G. WILLIAM SWIFT, Jr., J. Pro Tem.
This is an appeal from a judgment of the district court in favor of the defendants, Vijaya Kumar and State Farm Mutual Automobile Insurance Company, and against the plaintiffs, Mary Eunice Harrison and Evelyn Wallace, wife of and Jack L. Wallace, dismissing their suit at plaintiffs' costs. From that judgment, which we affirm, plaintiffs appeal.
Incorrectly named as Krishnannair Vijaya Kumar.
Incorrectly named as Mary Evelyn Wallace.
On the morning of August 24, 1978, plaintiffs were involved in a pedestrian-vehicle accident in the 7800 block of Chef Menteur Highway near a break in the median. There was no pedestrian crosswalk at this point. Plaintiffs were attending the American Legion National Convention in New Orleans. They had driven their recreational vehicle to the city and leased space in the Parc d'Orleans campgrounds. Plaintiffs traveled to the Monteleone Hotel, where the convention was held, by public transportation. The bus stop was located two blocks west of the Parc d'Orleans and on the opposite side of the Chef Highway where the traffic at the intersection was controlled by an electric semaphore light.
Neither of the plaintiffs was able to describe the manner in which the accident occurred.
Defendant Kumar testified that he was driving west towards New Orleans on Chef Menteur, which is a six-lane divided highway with three lanes westbound and three lanes eastbound, at a speed of between 30 and 40 miles per hour, which was within the legal limit for that area. His vehicle was in the middle lane. The traffic was heavy, and travelling in the left westbound lane and approximately one-half car length ahead of defendant was a red truck. The right westbound lane was temporarily free of traffic. The red truck suddenly cut directly in front of Mr. Kumar's vehicle, forcing the defendant to rapidly change from the middle to the right lane. Just at that point in time plaintiffs were entering the right lane. Mr. Kumar applied his brakes immediately to avoid hitting the plaintiffs, but his actions were to no avail.
Anthony Almerico, the only other eye witness who testified at the trial, was standing near his shop when the accident occurred and saw the entire accident. Mr. Almerico stated that the red truck suddenly and without a signal pulled in front of Mr. Kumar's vehicle in order to avoid hitting the tail end of another truck. This other vehicle was attempting to make a left turn, but had not pulled far enough into the break in the median for its rear end to avoid protruding partially into the left westbound lane. The witness said that Kumar definitely put on his brakes and tried to avoid the accident, but was unable to do so. Mr. Almerico also testified that the red truck which turned into the middle lane almost struck the plaintiffs.
The trial judge concluded that the defendant was not negligent. We agree. Defendant was confronted with an emergency situation that was not of his own creation. In light of the evidence and testimony presented, we cannot conclude that the trial judge was manifestly erroneous.
For the reasons discussed, the judgment of the district court is affirmed at costs of plaintiff-appellees.
AFFIRMED.