#### D. R. HAYGOOD, Plaintiff-Appellee, v. Calvin J. HEBERT et al., Defendants-Appellants.

No. 11243.

Court of Appeal of Louisiana. Second Circuit.

June 5, 1969.

Theus, Grisham, Davis, Leigh & Brown, Monroe, for defendants-appellants.

Guerriero & Guerriero, Monroe, for plaintiff-appellee.

Before GLADNEY, DIXON and PRICE, JJ.

GLADNEY, Judge.

Plaintiff, D. R. Haygood, sues Calvin J. Hebert and his insurer, Employers’ Liability Assurance Corporation, to recover property damages sustained by his Jeep automobile which was involved in an inter-sectional collision with a Chevrolet stattion wagon owned and operated by Calvin Hebert. After a trial on the merits judgment was rendered in favor of plaintiff for the stipulated amount of $415.81. Defendants have appealed.

The accident giving rise to this law suit occurred about 1 p. m. o’clock April 3, 1968 on U. S. Highway 165 at a point approximately two miles north of Monroe where the highway is entered from the east by Fink’s Hideaway Road and forms a T-type intersection. Highway U. S. 165 at this point runs in a north-south' direction and consists of two lanes surfaced with asphalt. At the time of the accident the pavement was wet from a light rain. Visibility was not interfered with, and the highway on both sides of the intersection was straight and level for a good distance. Because of the intersection the highway was marked with double yellow lines to warn of the hazardous nature of passing. *406The speed limit along this country-type road was 60 miles per hour.

Both vehicles prior to the accident were proceeding southerly on Highway 165. The Jeep was being driven by Grady Carter, an employee of plaintiff, accompanied by Eddie Tribble, a co-worker. Carter testified he intended to make a left turn into Fink’s Hideway Road, and that as he approached the intersection at a speed of 35 miles per hour he observed the defendant’s station wagon some distance to the rear; that when he was over a block away from the intersection he extended his arm from the window and continued to have it so extended as a left turn signal until he commenced his left turn; and that after slackening his speed and immediately prior to the turn he again observed the following vehicle and concluded he had adequate time within which to safely make a left turn. The testimony of Carter was corroborated by Tribble, the passenger in the Jeep. Hebert testified that as he neared the Jeep he neither observed the yellow lines, the intersecting road, nor the hand signal. Further testimony was given by Marvin Culpepper, the Investigating Officer, who stated that his report of the accident indicated Hebert was inattentive. This witness also testified Carter told him he had given a left turning signal.

The trial judge in written reasons for judgment concluded the negligence of Hebert as evidenced by his crossing the yellow lines and attempting to pass the Jeep at the intersection was the sole proximate cause of the accident. Also he found Carter had properly given an arm signal for a left turn and had observed the station wagon following him a sufficient distance away to enable him to execute his left turn safely and that again before he made his turn he observed defendant’s vehicle behind him and felt he had sufficient time to make the turn.

Defendants have assigned as error the failure of the trial court to find Grady Carter contributorily negligent. We have reservations as to whether contributory negligence has been properly plead. Service Fire Insurance Company of New York v. Indiana Lumberman’s Mutual Insurance Company, La.App., 111 So.2d 358, 361 (4th Cir. 1959); Youngblood v. Newspaper Production Company, La.App., 135 So.2d 620, 623 (2d Cir. 1961); Moore v. State, La.App., 136 So.2d 751, 755 (1st Cir. 1961). See also C.C.P. Arts. 1005, 1006. But it is unnecessary to pass on this point for-asmuch as we rule that the facts support the holding of the trial judge that the sole proximate cause of the accident was the negligence of the defendant Hebert due to his failure to see the signal given by Carter and his failure to observe the yellow warning lines which prohibited passing at the intersection.

The Highway Regulatory Act provides that a vehicle shall not turn at an intersection upon a roadway unless and until such movement can be made with reasonable safety. An appropriate signal shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning. LSA-R.S. 32 :- 104, subds. A, B. It is also required of the preceding motorist desiring to execute a left turn that he make careful observation of traffic approaching from either direction immediately before executing the turn. Thus the turning motorist is charged with a heavy burden to establish his freedom from negligence. The manner in which a motorist should make a left turn upon the public highways of Louisiana is set forth in LSA-R.S. 32:101 and 32:104. It has been held repeatedly, however, that the burden so placed is subject to the qualification that he has a right to assume oncoming and following traffic will observe the duties imposed by law. The left turning driver therefore is entitled to rely on the assumption that the overtaking driver will not speed, cross double yellow lines prohibiting passing or attempt to pass at an intersection where at the time of observing the overtaking vehicle there was no indication that violations were forthcoming, and *407the subsequent collision with the overtaking vehicle was not the result of making a left turn at an unsafe time. Faulkner v. Ryder Tank Lines, Inc., La.App., 135 So.2d 494, 496 (2d Cir. 1961); Breland v. American Insurance Company, La.App., 163 So.2d 583 (2d Cir. 1964); Smith v. Employer’s Mutual Insurance Company of Wisconsin, La.App., 179 So.2d 920, 922 (2d Cir. 1965); and Procell v. Strange, La.App., 203 So.2d 739 (3d Cir. 1967).

In view of the evidence and the duty owed by Hebert to the vehicle preceding him, we find no error in the lower court’s conclusion that the sole proximate cause of the accident was the negligence of Hebert. A careful reading of the evidence convinces us that the trial judge was fully justified in accepting the plaintiff’s version of the accident as opposed to that of the defendant. When the outcome of the case depends upon the trial judge’s determination of matters involving purely factual issues it is well settled that the judgment of the trial court will not be disturbed in the absence of manifest error.

The judgment is affirmed at appellants’ cost.

DIXON, Judge

(dissenting).

I must respectfully dissent.

This does not seem to be one of those rare cases in which damages can be awarded to one whose vehicle turns left and is involved in a collision.

The majority opinion, it seems to me, misinterprets the trial judge’s “written reasons for judgment.”1 As a matter of fact, the driver of the left turning jeep, Grady Carter, in a discovery deposition said that he was traveling about 35 miles per hour and gave a hand signal about a block and a half from the Fink’s Hideaway Road intersection. After testifying that he gave a hand signal, he said, “Well I seen the car coming at a high rate — I mean at a speed but I couldn’t tell you how fast it was running but I gave my signal to let him know I was going to turn out you see.” In his subsequent testimony Carter reiterated that he did not know the speed of the approaching vehicle, but *thought*that it was doing better than 60 miles per hour.

R.S. 32:104 provides that “no person shall turn a vehicle at an intersection * * * or * * * from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety.”

Carter’s testimony convinces me that he saw the defendant’s vehicle approaching from the rear at a high rate of speed, as he testified, but persisted in his intention to turn left, placing the entire burden of avoiding the accident on the defendant, who had already committed himself and his automobile to a course which would result in a collision when Carter commenced his left turn. It cannot under any circumstances be said that Carter obeyed the mandate of the statute and refrained from turning his vehicle from a direct course *unless and until*the movement could be made with safety. If Carter had done *408what the law requires of him, the collision would not have occurred.

The law places a high degree of care and responsibility on a driver who wishes to turn left. This is thoughtful and intelligent legislation. The left turn rule that has been recognized by courts since the earliest days of the automobile is a life saving rule. If the rule is observed, accidents will be prevented. If erosions and incursions are allowed, left turn accidents will continue to occur and to increase in alarming numbers. Every generation, and, in fact, every new driver must be taught that a left turn is a dangerous maneuver, and must not be made, unless it can be made in safety. The courts can contribute to highway safety by maintaining the standard established by the legislature. Only in the rarest circumstances should one responsible for a left turning vehicle be allowed to recover damages.

1

. “Now, the plaintiff testified that he looked hack once and observed the — at least the defendant testified he observed the plaintiff’s vehicle — the defendant’s vehicle, behind him but it was a sufficient distance away at that time that he thought he could make his turn and then again before he made his turn he observed the defendant’s vehicle behind him and he felt that he had sufficient time to make his turn and that he gave a signal. The plaintiff’s witness — both the plaintiff’s witnesses testified that an arm signal was given and the defendant testified that no signal was given. X realize that the burden is on the plaintiff in these cases, not only to look but to ascertain that he can make a left turn in safety, if he observes a car behind him then he is under a duty to ascertain that he can make that turn in safety, that additional duty, however, in this case I think that he has carried that burden of proof and I’m going to hold in favor of the plaintiff.”