#### Johnnie JOHNSON v. John P. OWEN and New Orleans Public Service, Inc. (Consolidated with No. 8502, Rebecca Davis, Widow of Frank Schief, Jr., Rose Mary Schief, Wife of Henry Fox, Eva Lee Schief, Wife of Clarence Lee, Jr., and Wallace Calvin Schief vs. John P. Owen and New Orleans Public Service, Inc., and No. 8503, Jeanette Johnson, Wife of and Warren Johnson vs. New Orleans Public Service, Inc. and John B. Owens, and No. 8504, Donna Scipio, Wife of/and Lester Nicholas vs. New Orleans Public Service, Inc., and John B. Owen, and No. 8505, Pedro Chamorra, et al. vs. New Orleans Public Service, et al., and No. 8506, Patricia Sanders and Edna Leon vs. New Orleans Public Service, Inc., Gerald Blackwell, John P. Owen, ABC Insurance Company and XYZ Insurance Company, and No. 8507, Ms. Debra Alexander vs. New Orleans Public Service, Inc. & John B. Owens).

No. 8501.

Court of Appeal of Louisiana, Fourth Circuit.

May 10, 1978.

Rehearing Denied June 13, 1978.

*273Charles R. Maloney, New Orleans, for plaintiff-appellee.

Floyd F. Greene, New Orleans, for defendant-appellant.

Before REDMANN, LEMMON, GULOT-TA, SCHOTT and GARSAUD, JJ.

LEMMON, Judge.

Defendant has appealed from judgments in seven consolidated cases which found its bus driver liable in an intersectional collision. The appeals primarily question whether the bus driver had time to avoid the accident after he saw or should have seen the automobile violate his right of way.

The accident occurred on a clear, dry afternoon at the intersection of Elysian Fields Avenue and North Prieur Street. At that point Elysian Fields was a large north-south divided thoroughfare. On each side of a 63-foot wide neutral ground were three lanes for travel, each approximately 12 feet *274in width, and a narrower parking lane. Prieur was an undivided two-lane street, 30 feet in width. Stop signs controlled traffic entering the intersection from Prieur.

Prior to the collision the bus, which had all seats filled and about 20 passengers standing, had been traveling north on Elysian Fields. The bus had made a service stop at the intersection one block before Prieur and was not scheduled to stop at Prieur Street.

The driver testified: He started from the service stop and had traveled about one-fourth of the block, at which point he had attained a speed of 10 to 15 miles per hour and was accelerating. Across the neutral ground to his left he noticed a green Cadillac crossing the southbound lanes of Elysian Fields, but observed nothing unusual about the car’s movements or the driver’s actions. When the bus was about three-fourths down the block, he saw the Cadillac stop at the edge of the neutral ground. He directed his attention away from the Cadillac, assuming it would remain stopped, and he first became aware of the imminence of a collision when he noticed a green flash or blur from the left, at which time he was about IV2 to 6 feet away from the Cadillac. He jammed on his brakes when he was about five feet from the car and his brakes caught, but did not stop the bus so as to avoid a collision. A “few seconds” elapsed between the time he applied the brakes and the time of impact, in which the left front of the bus struck the right side of the car, between the front fender and the front door. After the accident he did not find any. skid marks made by the bus, but did notice some tire marks made by the Cadillac.

The driver of the Cadillac, a non-resident who was served under the long arm statute but who made no appearance, told the investigating officer after the accident that he did not see the bus prior to the collision.

The investigating officer found five feet of light tire marks just behind the front wheels of the bus, which he identified as the kind he often found just before the tires got hot enough to start leaving skid marks. The officer also found tire marks left by the Cadillac, which began in an eastbound direction and then went perpendicular in a northbound direction. He characterized the northbound marks, five feet in length, as scuff marks made by the Cadillac being pushed northward by the bus after the collision.

Several passengers testified that the bus had been traveling at a constant speed of about 25 miles per hour when they saw a green flash come across the front of the bus, followed by the impact. One passenger, Patricia Morris, testified that when several passengers uttered exclamations, she looked up immediately and caught a glimpse of the top of the car, adding, when asked if the bus driver applied his brakes simultaneously with her sighting the car, that “I don’t know if we (she and the driver) both saw the same thing at the same time but somewhere close about that time he did hit the brake”. Answering a question as to how much time elapsed “between the time the bus driver hit the brakes and the impact of the collision”, she estimated it “couldn't have been more than a few seconds”.

This overall testimony strongly suggests that the bus driver and the passengers saw the Cadillac unexpectedly enter the path of the bus at about the same time. Furthermore, the tire marks constituted mute evidence that the bus driver saw the Cadillac in sufficient time to react and at least begin braking, although he incorrectly stated that he had not sensed the imminence of danger until he was a few feet away from the Cadillac.

Imposition of liability depends upon a determination of the duty of each driver and an application of that duty to the facts of this case. The driver of the Cadillac had the duty to yield the right of way, and although he stopped at the edge of the neutral ground, he did not wait in the stopped position until he could cross the intersection safely. He was therefore negligent, and his substandard behavior was a legal cause of the accident.

*275The bus driver, on the other hand, had the right of way, and when he saw the Cadillac stopped at the edge of the neutral ground, he had the right to assume that the Cadillac would remain stopped in obedience to the traffic device controlling the intersection. Of course, once the Cadillac demonstrated that it was not going to remain stopped, a duty devolved upon the bus driver to discover the movement of the Cadillac and to take reasonable steps in response thereto. The determinative question as to his liability is whether he had sufficient time, *after*the duty arose to discover the Cadillac’s movement, to take reasonable action which could have avoided the accident.

The description of the Cadillac by all witnesses as a green flash or blur compels the conclusion that the car moved out quickly from its stopped position in the neutral ground. If the bus driver had reacted the very instant the Cadillac started up, he theoretically *may*have been able to avoid the accident.1 Yet the bus driver, who is held to the highest degree of care, was required to exercise overall observation and could not concentrate solely on the stopped vehicle which all motorists should have been able to assume would remain stopped. Furthermore, even a bus driver had no duty to react the very instant the stopped car moved forward — it may have been starting so as to cross behind the bus or it may have been turning left into another lane. And, of course, a bus driver also has a duty to avoid unnecessary sudden and violent braking.

If the bus driver in this case is allowed a reasonable interval of time to apprehend the danger that a motorist will disregard his right of way, there is simply no evidence that he had sufficient time thereafter to avoid the accident. Indeed, the physical facts indicate that he did not. The trial judge erred in placing too great a duty on a right of way motorist, even if that motorist was driving a transit bus.

For these reasons, the judgment of the trial court is reversed, and it is now ordered that the suit be dismissed at plaintiff’s cost.

*REVERSED AND RENDERED*

GULOTTA, J., concurs and assigns reasons.

SCHOTT, J., dissents and assigns reasons.

GARSAUD, J., dissents for the reasons assigned by SCHOTT, J.

1

. If the coefficient of friction of the street surface is assumed to be 0.75, then the maximum velocity the car could have attained in 30 feet (across two and a half lanes) was 38 feet per second (26 miles per hour). [The formula is V2 = 2 (32.2) D u]. Lacy, Scientific Automobile Accident Reconstruction, Ch. 6, p. 581 (1968). And if the car did move from the stopped position at maximum speed, the time elapsed between start up and impact was 1.57 seconds. (The formula is T = V 32.2 u). Lacy, supra, Ch. 1, p. 1139.

Yet a vehicle traveling at 15 miles per hour, with brakes at maximum efficiency, takes 0.91 seconds, plus a reaction time of 0.75 seconds, to brake to a stop on a surface with a 0.75 coefficient of friction. And a vehicle traveling faster takes even longer.

GULOTTA, Judge,

concurring.

I concur with the result.

Implicit in the trial court’s imposition of liability on the part of the bus driver is a factual finding that the automobile did not stop at the neutral ground and indicated no intention to stop. The evidence does not support such a conclusion.

SCHOTT, Judge,

dissenting.

At the point where this collision occurred Elysian Fields consisted of northbound and southbound roadways divided by a neutral ground measuring 62 feet 8 inches wide. The northbound side of Elysian Fields was 44 feet 5 inches wide, and consisted of three lanes to accommodate moving traffic and a parking lane on the east side. The southbound side of Elysian Fields Avenue was 43 feet 7 inches wide. North Prieur Street was 30 feet wide. There was a stop sign facing west at Prieur Street and thus affording traffic on Elysian Fields the clear right of way. Prior to the collision the bus was traveling north on Elysian Fields and the automobile was proceeding east on North Prieur, crossing Elysian Fields be*276fore, and at the time of impact the bus was in the third traffic lane from the neutral ground, which lane was 24 feet 2 inches from the neutral ground. The impact was between the left front of the bus and the right front side of the automobile.

In *Wise v. Prescott,*244 La. 157, 151 So.2d 356 (1963) the Supreme Court restated the legal principles applicable to a case such as this:

> “The mere showing of injury to a fare-paying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence and imposes the burden on the carrier of convincingly overcoming such case ... “A public carrier of passengers while not an insurer is required to exercise the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport and is liable for the slightest negligence. . The carrier must do all that human sagacity and foresight can do under the circumstances, in view of the character and mode of conveyance adopted, to prevent injury to passengers, the carrier being held liable for the slightest negligence with reference to the exercise of such care. . . .” (citations omitted)

Thus, in our review of this case we must decide whether the trial court committed error in concluding that NOPSI failed to carry its burden of proof that it was without any negligence. For NOPSI to prevail it must establish that its driver exercised the highest degree of care.

At the trial Blackwell, NOPSI’s driver, testified: After making a stop the block before North Prieur Street he pulled out into the lakebound moving lane of traffic. When he was about a half block from North Prieur Street he saw the Owen automobile stopped on North Prieur Street on the other side of Elysian Fields. As he moved forward accelerating speed, he saw the Owen automobile cross over the southbound side of Elysian Fields, enter the neutral ground and come to a stop before entering the northbound side of Elysian Fields from the neutral ground. Blackwell first realized that a collision was imminent when Owen’s car entered his lane of traffic and was five feet ahead of him. At that time Blackwell was traveling 15 miles per hour and immediately applied his brakes. Describing the movement of Owen’s automobile, Blackwell said “it shot out” from the neutral ground and attained a speed of 15 to 20 miles an hour by the time of impact. At a deposition taken some six months before trial, Blackwell said nothing about Owen stopping in the neutral ground at any time and said he did not realize a collision was imminent until the automobile was one and a half feet away from him.

The police officer who was NOPSI’s witness testified that he estimated the speed of the Owen automobile to be ten miles per hour and that of the bus to be fifteen miles per hour before the impact. He found that the bus had left five feet of skid marks behind its front wheels and after impact the bus traveled about five or six feet pushing the automobile forward.

Some of the passengers testified that pri- or to the collision they saw coming from the neutral ground a green flash or blur followed quickly by the sudden stop of the bus and the collision. One passenger testified that she heard a stir of excitement among the pedestrians as though they saw something, she looked up and saw the blur which was immediately followed by application of the brakes and the impact.

If one accepts Blackwell’s testimony at the trial that he saw Owen come to a stop in the neutral ground, the question becomes whether or not Blackwell had some duty to see Owen leaving the neutral ground and approaching his path before that point when Owen entered his lane just one and a half to five feet in front of him. Owen traversed 24 feet from his stopped position before Blackwell saw him again even though Blackwell had a clear and unobstructed vision of Owen’s path.

It is axiomatic that any driver who fails to see what is obvious to him is derelict in his duty. On the other hand, when Blackwell saw Owen come to a stop he was entitled to presume that he would remain *277stopped until the bus passed. But the fact remains that Owen did not remain stopped and from the moment he started to move Blackwell should have seen that the two vehicles were on a collision course. Since Blackwell insisted that he never attained a speed in excess of fifteen miles per hour it is reasonable to infer that he was negligent in failing to stop before the two vehicles were five feet if not one and a half feet apart.

This conclusion is bolstered by the testimony of those passengers who testified that they saw a blur or a flash approaching from the left of the bus before Blackwell did and particularly by the testimony of Mrs. Patricia Morris that she was seated in the rear and on the right side of the bus when she heard other passengers “say something like they could see the car coming,” whereupon she raised her head and saw the top of the car just prior to impact. She answered yes to this question:

> “I take it there were other people on the bus who, like you, saw the car before the accident because they reacted with oh’s and ah’s before the collision?”

From this testimony it seems that an interval of time passed when Owen started to move from the neutral ground and the passengers became sufficiently alarmed to cause Mrs. Morris to look up. Again, we come back to the question of why didn’t Blackwell anticipate trouble before Owen was in his path five feet in front of him.

When Blackwell was recalled to the witness stand after Mrs. Morris testified he denied that he heard any indication among the passengers that a collision was imminent. Asked to explain why the conflict between her testimony and his he stated that he had more than one thing to contend with while operating his bus.

This discussion of the evidence was preceded by the statement of the law which places a high degree of care on a public carrier. It is clear that this was an extremely close case to call, but our role as a reviewing appellate court is quite different than the role of the trial court. We must decide if the evidence before the trial court furnished a reasonable factual basis for his conclusion, in effect, that Blackwell’s conduct did not measure up to the extremely high degree of care placed upon him, and that this accident could have been avoided had Blackwell exercised the slightest degree of care. *Canter v. Koehring,*283 So.2d 716 (1973). Under this standard I have concluded that the judgment on liability should be affirmed even though I might have decided the case differently had I been the trial judge.

GARSAUD, Judge,

dissenting.

I dissent for the reasons assigned by Judge Schott.