#### Raymond E. THOMAS v. Frank M. LEE et al.

No. 8149.

Court of Appeal of Louisiana, First Circuit.

Dec. 21, 1970.

Rehearing Denied Feb. 5, 1971.

Writ Refused March 10, 1971.

*537Daniel R. Atkinson, Richardson, Taylor & Rouge, for appellant. of Dale, Owen, Mathews, Baton

Robert L. Kleinpeter, appellees. Baton Rouge, for

Before LANDRY, BLANCHE, JJ. ELLIS, and

ELLIS, Judge.

This is a suit for personal injuries arising out of an accident which happened at the intersection of Louisiana Highways 30 and 3115. Plaintiff was operating his pick-up truck in a westerly direction on Highway 3115, a gravel road. Defendant Frank M. Lee was operating a 51 foot tractor-trailer rig in a northerly direction on Highway 30. Also made parties defendant are Aubrey LaPlace, lessee of the rig, and United States Fidelity and Guaranty Company, its insurer.

It is shown by a preponderance of the evidence that Highway 30 was under construction at the time of the accident, and was closed to public traffic. Barricades with “Road Closed” signs on them were located on Highway 30 on either side of the intersection. There was, however, sufficient room left on the paved surface of the highway for vehicles to drive around the barricades. Mr. Lee testified that he had permission from the contractor to use the road.

Mr. Lee testified that as he approached the intersection, he saw the barricade across his lane, and brought his rig to a stop 10 to 20 feet before he reached it. He looked to his right and left and saw no traffic approaching, whereupon he drove around the barricade into the southbound traffic lane, and proceeded across the intersection. When he was almost across, he heard a vehicle sliding in the gravel, and looked into his right hand rear view mirror in time to see the pick-up truck strike his trailer. He said the pick-up hit the trailer at the tire rack, just ahead of the rear wheels, at a point about six feet from the rear of the trailer. He stated that his rig was very slow starting, and that it would normally take him eight to ten seconds to clear the intersection.

Mr. Thomas testified that as he approached the intersection, he saw the rig approaching from his left, and saw it stop at the intersection. He assumed that it would remain stopped. When he realized that it was moving out into the intersection, he testified that he applied his brakes, but was unable to avoid the collision. He was knocked unconscious in the collision, and recalled nothing further until he woke up in the hospital. He was never asked his speed, and did not know how far he was from the intersection when he first saw the rig.

The investigating officer placed the point of impact in the northwest quadrant of the intersection, just west of the center-line of Highway 30. He measured 54 feet of skid marks left by the pick-up truck. He testified that the plaintiff told him that he was going 40 miles per hour, and that the tractor and trailer appeared in front of him suddenly. In his report, he quoted plaintiff as saying that the rig “suddenly came across.”

The trial judge found that Mr. Lee was negligent in that he failed to keep a proper lookout, and failed to yield the right of way. He found that Highway 3115 was the superior highway because Highway 30 was under construction, and because of the presence of the barricades. He further concluded that, in the absence of proof of the plaintiff’s speed, defendants had failed to establish any contributory negligence on the part of plaintiff. He rendered judgment in favor of plaintiff, from which defendants have taken an appeal.

Because we are of the opinion that the plaintiff was guilty of contributory negligence, we pretermit any discussion of the negligence of Mr. Lee.

We think it obvious from the length of the tractor-trailer rig, the slow rate of *538speed at which it must have entered the intersection, and the length of time it took to cross the intersection that, no matter what the speed of Mr. Thomas’s vehicle might have been, he should have seen it in time to avoid the collision. If he were driving 40 miles an hour, he would have been 295 feet from the point of impact only five seconds before the collision. At 60 miles per hour, he would have been 440 feet away, and at 20 miles per hour, 145 feet away. At that time, the rig would have already been more than half way across the intersection. Had he seen it, as he should, he had ample opportunity to stop, even on a gravel road. As it was, his brakes were applied only 54 feet from the point of- impact, when it was too late to avoid the collision. He failed to see what he should have seen, and his negligence in that respect is a proximate cause of the accident. See Robert v. Travelers Indemnity Company, 196 So.2d 657 (La.App. 1 Cir. 1967).

The judgment appealed from is therefore reversed, and there will be judgment herein in favor of defendants and against plaintiff, dismissing plaintiff’s suit at his cost.

Reversed and rendered.

Rehearing denied.

BLANCHE, Judge

(dissenting).

The record does not support a finding that the plaintiff was guilty of contributory negligence. The defendant must prove by a preponderance of the evidence that the plaintiff was guilty of contributory negligence, Wiggins v. Kansas City Southern Railway Company, 240 So.2d 744 (La. App. 2nd Cir. 1970), and to arrive at this conclusion we must make certain assumptions to overcome the factual findings of the trial judge. The majority assumes the contributory negligence of the plaintiff was obvious because of the length of the trailer (54 feet), the slow speed at which it “must have entered the intersection” and the “length of time” it took to cross the intersection to the point of collision and that regardless of the speed of the plaintiff’s vehicle, he should have seen the truck in time to avoid the collision. This conclusion is based on assumptions of speed and time, the validity of which depends more on my colleagues’ sense of logic than on evidence. Mr. Lee did not estimate his speed but stated that his rig took off slowly because of the manner in which he was required to shift and that it took him approximately eight or ten seconds (an estimate) from the time he reached the barricade to proceed to the point of the collision. On the other hand, the plaintiff testified that as he approached the intersection he saw the truck stopped at the barricade and proceeded on, and thereafter when the truck proceeded out into the intersection, he applied his brakes and slid into the truck. It must be remembered that Mr. Lee did not see the plaintiff at all. Further, considering the fact that Mr. Lee stopped at the barricade before proceeding into the intersection, plaintiff had every right to assume that he would remain stopped until the way was clear. Thus, the trial judge did not accept the unsupported statement by the driver Mr. Lee as to the length of time it would take him to cross the highway with his tractor-trailer rig, and rightly so, as there is no evidence as to any road test of any type to clock the truck so as to ascertain the exact length of time it would take an unloaded truck to make such a clearance. The majority is overruling the trial judge’s conclusion that Thomas, on the superior highway, was in such close proximity to the tractor-trailer when it started across the highway that he was unable to stop and accepting the unsupported statement of the defendant-driver as to the length of time and speed at which it would take to make such a maneuver that plaintiff should have seen him in time to stop. The evidence justifies the conclusion of the trial judge, and our only right to overrule him is in a case of manifest error.

A manifest error is an error which is “clearly or obviously, wrong or in error,” Thompson v. Audubon Insurance Company, *539101 So.2d 752 (La.App. 1st Cir. 1958) or “ ‘evident’, ‘apparent’, ‘clear’, ‘visible’, ‘unmistakable’ and ‘indiputable’ ”, Norman v. State, 69 So.2d 120 (La.App. 2nd Cir. 1953), reversed on other grounds, 227 La. 904, *80*So.2d 858 (1955).

On reconsideration I am unable to conclude that there is manifest error in the judgment of the trial court and, therefore, dissent from the refusal to grant a rehearing.