#### Mrs. Aristile GUILLORY, Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY et al., Defendants-Appellants.

No. 3265.

Court of Appeal of Louisiana, Third Circuit.

Dec. 9, 1970.

*773Holt & Woodley, by E. E. Woodley, Lake Charles, for defendant-appellant, Travelers.

Plauché, Sanders, Smith & Hebert, by Reid K. Hebert, Lake Charles, for defendant-appellant-appellee, Houston Fire.

Lon Tyndall, Lake Charles, for plaintiff-appellee.

Before SAVOY, HOOD and CULPEP-PER, JJ.

CULPEPPER, Judge.

This is a suit for damages for personal injuries sustained in an automobile accident. Plainitff was a passenger in an automobile being driven by her husband and insured by Houston Fire and Casualty Insurance Company. The other vehicle was being driven by the defendant, Herbert Tietje, and insured by the defendant, Travelers Insurance Company. Defendants filed a third party demand against Mr. Guillory and his insurer for contribution. The district judge found both drivers negligent and rendered judgment accordingly. Defendants appealed.

The issues are: (1) the negligence of the defendant Tietje, (2) the negligence of Mr. Guillory, and (3) the quantum of the award.

The scene of the accident is on Louisiana Highway No. 27, a two-lane, two-way, blacktopped thoroughfare which runs south from Lake Charles through a flat rural area. This highway is intersected from the east by a parish road, of shell construction, forming a T-intersection. The speed limit on the highway is 60 miles per hour. The accident occurred on a clear dry day.

Mr. Guillory, with plaintiff as a passenger on the front seat, was driving south on Highway 27 at a speed of about 40 miles per hour, with the intention of turning left onto the parish road. He testified that as he approached the intersection, he looked in his rear view mirror and saw three cars following him but they were “far enough” behind that he had plenty of time to turn. Then at a point “40 or 50 yards, or maybe 100 yards” from the intersection, he actuat*774ed his left turn blinking signal. Without again looking to the rear, he proceeded to make his left turn when he reached the intersection. The front of his vehicle was on the shell road when the left rear was struck violently by the front of the Tietje automobile, which was traveling in a southerly direction and had attempted a passing maneuver.

Tietje testified that he had passed- another vehicle about one quarter of a mile north of the intersection and was following the Guillory vehicle at a speed of 35 to 40 miles per hour. Guillory was going “real slow”, so Tietje accelerated to about 50 miles per hour. While in the passing lane, Guillory suddenly turned left toward the shell road and the collision ensued. Tietje applied his brakes hard and turned to the left but was unable to avoid a collision.

The state trooper who investigated the accident testified that the Tietje automobile left about 100 feet of skidmarks in the passing lane to the point of impact.

Under these facts, the district judge correctly held that Mr. Guillory was negligent in attempting to turn left from the main highway at a time when it was unsafe to do so because of the Tietje vehicle approaching from the rear. A left turning motorist is required not only to look but to see what he should see. If Guillory had looked to the rear immediately before turning, he should have seen the Tietje automobile which was by then in the passing lane. See Barras v. Fidelity & Casualty Company of New York, 152 So.2d 74 (3rd Cir. 1963) and the many cases cited therein.

The next issue is whether the defendant, Tietje, was negligent in passing at an intersection. The question here is whether this particular road junction constituted an intersection within the meaning of LSA-R.S. 32:76, which provides that no vehicle shall be driven on the left side of the highway “when approaching within 100 feet of or traversing any intersection.”

In Fontenot v. Pan American Fire & Casualty Company, 209 So.2d 105 (1968), writ of certiorari denied, we reviewed at length the jurisprudence construing this statute. Generally, an intersection, under the statute prohibiting passing, is one where the ordinary motorist should reasonably anticipate the possibility of danger from a passing maneuver. Each case depends on its own facts. Some of the factors considered by our courts are: (1) whether the intersecting thoroughfares are public or private, (2) their comparative widths, (3) the type of construction (paved, gravel, dirt, etc.), (4) the presence or absence of any signs or markings, (5) the amount of use of each.

With these factors in mind, let us examine the facts of the present case. As stated above, Highway 27 is a main traffic artery of blacktop construction on which the speed limit is 60 miles per hour. The intersecting thoroughfare is also a public highway leading to a thickly populated rural area. It is of shell construction. The shell road itself is about 20 feet in width, sufficient for two-way traffic, but at its junction with Highway 27 it fans out to a much greater width. The intersection is readily observable for a distance of over 100 yards. Mr. Tietje himself admitted that it could be seen for a distance of 350 to 400 feet. A photograph filed in evidence corroborates this fact. It is true there were no signs marking the intersection nor any “no passing” lines on Highway 27. However, this is not an absolute requirement of the statute or the jurisprudence. See the Fontenot case, supra.

Under the circumstances, we affirm the conclusion of the district judge that this did constitute an intersection within the meaning of the statute. It follows that Mr. Tietje was negligent in attempting to pass at this point.

The final issue is whether the award of $2,500 to Mrs. Guillory for general damages is excessive. The facts show *775that she is 68 years of age and had preexisting arthritis. Immediately after the accident on July 30, 1968, she was seen in a hospital in Lake Charles by Dr. Walter Moss, a general practitioner. He found contusions of the face, neck and right arm, with an aggravation of arthritis of the cervical spine. This physician stated that at the time of the trial, May 22, 1970, she could still be having difficulties from the aggravation of the arthritic condition.

Dr. Charles V. Hatchette, an orthopedic surgeon of Lake Charles, saw Mrs. Guil-lory on two occasions, April 27, *1970,*and May 21, 1970. She was complaining of pain in the cervical spine, headaches and pain radiating into the upper back. This physician concluded that plaintiff had suffered a cervical strain with aggravation of arthritis from which she was still having symptoms at the time of his examination.

On February 4, 1969, plaintiff was examined by Dr. Norman T. Morin, an orthopedic surgeon of Lake Charles. This physician found Mrs. Guillory’s complaints of pain in the cervical area were genuine but said he was unable to express an opinion as to whether they were causally related to the trauma.

Under the evidence, we conclude that the award of $2,500 is within the great discretion of the trial judge as to the quantum of awards for personal injuries.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendants appellants.

Affirmed.

HOOD, Judge

(dissenting.)

I disagree with my colleagues in their holding that Mr. Tietje, the driver of the overtaking vehicle, was negligent.

The majority has found that Tietje was negligent solely and only because he attempted to overtake and to pass Guillory at an “intersection,” as that term is used in LSA-R.S. 32:76. In my opinion the road junction at which this collision occurred was not an “intersection,” within the meaning of the abovecited statute, and that the majority has erred in holding that it was. I think the majority opinion is contrary to the established jurisprudence of this state.

..The accident occurred in a rural area on Louisiana Highway No. 27. That highway is a hard-surfaced, two-laned, straight, level, heavily traveled thoroughfare. It runs north and south and it is the principal route provided for vehicles traveling between Lake Charles and Cameron. The speed limit on that highway is 60 miles per hour.

At the point where the cars collided, a shell road running east and west joins or runs into the east side of the highway, forming a “T” intersection. This shelled road is very narrow, being only 20 feet wide. There were no signs, lights or markers of any kind on Highway 27 indicating that a road of any kind joined the highway there. And, there were no “stop” or “yield” signs on the shelled road warning motorists on that road to stop or yield before entering the highway. The center line of Highway 27 was clearly marked with white paint, but there were no “no-passing” yellow lines on the highway anywhere near the place where it was joined with the above-mentioned shelled road.

The State Trooper who investigated the accident testified that the shelled road was a ‘rparish road,” but that it was such a minor thoroughfare that it had never been assigned a number or a name, and that he “couldn’t even get a nickname for it.” He stated that the shelled road “was not visible from a distance to identify it as an intersection,” that the shelled road could be seen at a distance of “a hundred yards, if you were looking for it,” but that he has “gone past it a number of times not realizing that I had passed it.”

*776The majority observes that Tietje admitted that the intersection could be seen “for a distance of 350 to 400 feet.” My colleagues, however, have taken that statement out of context, and have completely misunderstood Tietje’s testimony. Tietje stated that at the time the accident occurred there were high weeds along the east shoulder of the highway which completely obscured his view of this junction. A few days after the accident occurred, however, the highway department cut the grass at the intersection, and Tietje testified that *after the grass was cut*the crossing could be seen for a distance of 350 to 400 feet. His testimony is very positive, however, that at the time the collision occurred the intersection could not be seen at any such distance. He stated, “that grass was 3 to 4 feet high when this accident happened,” that “you couldn’t even see this * * that “you weren’t able to see that because the grass had growed up about this high * * that “you couldn’t see it driving down the highway * * * absolutely not,” that “there was no way in the world to see it,” that at the time the accident occurred no one could see “this shell fanning out where it meets Highway 27.” Tietje agreed with the testimony of the Trooper that the shell road was visible for a distance of 100 yards after the grass had been mowed, but he specifically disagreed with plaintiff’s implication that such a condition existed at the time of the accident. Tietje’s testimony to that effect was:

> “I disagree with it this way; that grass was up there three foot high, and is visible — the shell that shows up now wasn’t visible at that time. That highway had been mowed.”

Tietje’s testimony as to the existence of high grass on the east shoulder of the highway at the time the accident occurred, and as to the cutting of the grass a few days later, was not contradicted, but on the contrary is supported by the other evidence.

In Sonnier v. Great American Insurance Company, 134 So.2d 363 (La.App. 3 Cir. 1969), the facts were almost identical with those presented here. We held there that the defendant driver was *not*negligent in attempting to overtake and pass a motorist at a “T” intersection, because: (1) There was no sign designating the side road; and (2) there was no yellow “no-passing” line on the highway at that point. In that case we said:

> “Defendant acted as a reasonable person in attempting to pass plaintiff at or near the junction of the gravel road and the highway which forms a “T” intersection *for the reason that there was no sign designating the side road and there was no yellow line along the center of the highway to warn of the danger*of overtaking and passing vehicles at the intersection.” (Emphasis added.)

The holding of the majority in the instant suit is directly contrary to our decision in the Sonnier case.

The collision involved in United States Fidelity and Guaranty Co. v. Duet, 177 So.2d 302 (La.App. 1 Cir. 1965), occurred at an intersection between Louisiana Highway No. 38 and a road known as Duet Lane. Both of these thoroughfares were hard-surfaced, and one was only slightly wider than the other, the highway being 22 feet wide, and Duet Lane being from 18 to 20 feet wide. The Court of Appeal, First Circuit, held that the junction of these two thoroughfares was *not*an “intersection” as provided in LSA-R.S. 32:76 because: (1) There was no intersection sign; (2) there was no caution light; and (3) there were no “no-passing” yellow markings on the state highway in that area.

The facts in the instant suit seem to me to be much stronger in favor of the insured, Tietje, than the facts in the Duet case were to the driver of the overtaking vehicle there.

In Crane v. London, 152 So.2d 631 (La.App. 2 Cir. 1963), our brothers of the Second Circuit held that the driver of the *777overtaking vehicle was *not*negligent in passing a car at the intersection of the highway on which they were traveling and a narrow dirt road. The reasons assigned were that “the intersecting road is a narrow dirt road neither posted nor marked by signals or lines indicating a no-passing zone.” The court held, “The road was not an intersecting highway within the intendment and purpose of the statute (LSA-R.S. 32:233 subd. E), prohibiting the overtaking and passing of motor vehicles at intersections.”

Numerous cases to the same effect are cited in each of the above-mentioned cases, and also in Normand v. American Home Assurance Company, 171 So.2d 804 (La.App. 3 Cir. 1965).

The only case cited by my colleagues to support their holding in this suit is Fontenot v. Pan American Fire and Casualty Company, 209 So.2d 105 (La.App. 3 Cir. 1968). That case involved an accident at an intersection within the city limits of Kinder, Louisiana. Both of the intersecting streets were two-lane, blacktopped city streets. We held that the overtaking motorist was guilty of negligence in passing at that intersection, because we concluded that “this was a hard-surfaced street within the city limits of Kinder, readily observable to approaching motorists as a city street leading into a residential area.” That case thus is not applicable to the instant suit.

If the well-established jurisprudence of this state should be applied to the facts presented here, the inescapable conclusion would have to be that the junction at which this accident occurred was not an “intersection,” within the meaning of LSA-R.S. 32:76. That conclusion must be reached, even if the shell road had been visible to Tietje long before he reached it, because in any event he had the right to assume that it was no more than a private driveway or lane, as it appeared to be.

I think the overtaking driver, Tietje, was completely free of any negligence, and that my colleagues have erred in finding that he was partly at fault.

For these reasons, I respectfully dissent.