#### MAX BARNETT FURNITURE CO., Inc. v. BARROSSE et al.

No. 20145.

Court of Appeal of Louisiana. Orleans.

Feb. 15, 1954.

Rehearing Denied March 29, 1964.

McLoughlin & West, New Orleans, for plaintiff-appellee.

Adams & Reese, New Orleans, for defendants-appellants.

JANVIER, Judge.

This suit results from a rather unusual automobile rear-end collision which occurred on May 19, 1952, at about ten o’clock in the morning on Poydras Street, near Loyola Avenue, in New Orleans.

Stanley J. Barrosse, one of the defendants, was driving his 1940 Buick Sedan on Poydras Street. A very strong wind was blowing across the car from right to left. It was raining very hard and the surface of the street was wet and slippery. Behind the Barrosse car was a 1947 Buick auto-' mobile owned and driven by Perry J. LeBlanc. Suddenly, and without any previous warning, the hood which covered the motor of the Barrosse car was blown from its position on the car and, when Barrosse saw it leave its proper position, he applied his brakes in emergency and brought his car to a sudden stop. Before LeBlanc could bring his car to a stop it had crashed into the rear of the Barrosse car and had sustained the. damage on which this suit is based.

LeBlanc assigned to the Max Barnett Furniture Có., Inc., his claim against Barrosse and Barrosse’s liability insurance carrier in the sum of $241.47, and the Barnett Company then brought this suit against Barrosse and the Metropolitan Casualty Insurance Co. of New York, the said liability insurance carrier of Barrosse.

Plaintiff alleged that the accident had resulted from negligence of Barrosse “in not having his hood properly and securely fastened,” that the hood of the Barrosse car was blown over that car “back towards the LeBlanc car,” and that “LeBlanc was suddenly confronted with the hood of the *887Barrosse car flying through the' air directly at him.” Plaintiff further alleged that-the accident “was in no way caused or contributed to by any negligence or lack of care on LeBlanc’s part.”

Barrosse and the Metropolitan Casualty Insurance Co. answered averring that there had been no negligence on the part of Bar-rosse and that the accident had resulted from negligence of LeBlanc in failing to keep a proper lookout, in failing to have his car under control, and “in traveling too close to the vehicle immediately preceding him in the line of traffic.”

In the First City Court of New Orleans there was judgment in favor of plaintiff and against both defendants solidarity as prayed for in the sum of $241.47, with legal interest from judicial demand and for costs. Both defendants have appealed devolutively and suspensively.

It is conceded that the amount claimed correctly represents the cost of the repairs to the LeBlanc car which were made necessary and that Max Barnett Furniture Co., Inc., became assignee of the claim of LeBlanc and was therefore “the proper plaintiff in this case.”

The record shows that the weather was extremely bad. According to LeBlanc there was “a very strong wind, a very strong rain.” Referring to the condition of the surface of the street, LeBlanc said: “It was very slippery.” When asked how far behind the Barrosse car he was driving, he stated “about 10 to 12 feet, IS feet.” When asked to point out “a distance in this courtroom that will show about how far behind his car you were,” he pointed to a wall in the courtroom and said, “maybe a little closer than that.” It was shown that he had indicated a distance of about 13 feet.

Neither Barrosse nor LeBlanc attempted to estimate the speed at which either of the ■cars were travelling.

It seems certain that the hood of the Bar-rosse car could not have been blown from •its proper position had it been secured as ■it should have been, and that the four Spring bolts which should have attached it to the car either were entirely absent or had not been attached to the frame of the car. Consequently,' we conclude that the blowing off of the hood resulted from negligence on the part of Barrosse. Therefore, the question posed for our consideration is simply this: Was the proximate cause of the accident the blowing off' of the hood, or was the result caused or contributed to by the fault of LeBlanc in operating his car too close behind the Barrosse car at a speed which did not permit of its being stopped in time to avoid contact with the Barrosse car?

There is a well-established rule which is stated in a syllabus which appears in Crow v. Alesi, La.App., 55 So.2d 16:

> “A motorist following other traffic must keep his automobile at a safe distance behind so as to enable him to stop his automobile in a sudden emergency.”

In McDaniel v. Capitol Transport Co., Inc., 35 So.2d 38, 42, the Court of Appeal, First Circuit, citing Blashfiéld’s Cyclopedia of Automobile Law, Vol. 1, sec. 29, p. 454, said: "

> “In trailing other cars, a motorist must govern his ‘speed or keep back a reasonably safe distance- so as to provide for the contingency of a car in front'suddenly stopping, and so that-he can stop without a collision, or can turn out sufficiently to pass the vehicle in front without going across the street in-the way of traffic approaching from the opposite direction, * * *.”

See, also, Burns v. Evans Cooperage Co., Inc., 208 La. 406, 23 So.2d 165; Vienne v. Chalona, La.App., 28 So.2d 154; Roberson v. Rodriguez, La.App., 186 So. 853; Hill v. Knight, La.App., 163 So. 727; Roberts v. Eason, 6 La.App. 703.

It is recognized that there may he special circumstances which might justify the failure of the driver of the second car to bring his car to a stop before striking the first car, and counsel for plaintiff insists that *888such circumstances existed here,- that this is one of the cases which justifies the application of the exception to the above-stated general .rule.

This exception to the general rule applies wherever " something occurs unexpectedly which causes the driver of the second car confusion and prevents his bringing his car to a stop. This situation is referred to in Woodall v. Southern Scrap Material Co., La.App., 40 So.2d 495, 498, and which we, referring to a decision of the Supreme Court in Dodge v. Bituminous Casualty Company, 214 La. 1031, 39 So.2d 720, said:

> “That opinion, with the ‘per curiam’ by which a rehearing was refused, indicates to us that the Supreme Court is still of the opinion that the driver of a vehicle is under the primary duty of operating it so that he will not run into any obstruction or vehicle ahead pf him, but that there may be exceptional circumstances which will excuse his failure to see such obstruction or other vehicle in time to avoid it.”

In most of the cases in which the exception to the general rule hqs been held to be applicable, tire driver of the first or leading car was attempting to hold liable the driver of the, second or following car, and it was held that even though the driver of the following car may have been at fault in following too closely behind the- first car, still the driver of, the first car could not recover because the sudden stopping, of his car had resulted - from negligence on his part and that this contributory negligence on his part should prevent his recovery.

In Leon v. Neal, 34 So.2d 276, 278, the Court of Appeal for the Second Circuit affirmed a judgment dismissing the suit of plaintiff who was the driver of the leading car. The Court of Appeal quoted with approval from the. reasons given by the District Judge: ...

> “My conclusion ■ therefore, is: .that the accident and -resulting damage waá - caused by the combined, Concurrent negligence of the drivers of both-cars,which continued down, to the. time of. the collision, and in this situation neither party can claim any award from-the other.”

While the Court did say that the negligence of the driver of the leading car in stopping too suddenly was the “proximate cause of the accident,” it obviously did not use .the words “proximate cause” in their usual sense for it very definitely said that both drivers were at fault, the one in stopping too suddenly and the other in running into the rear of. the first car, and that the accident had resulted from the negligence of both. Furthermore, it was charged in that case that the driver of the second car was following too closely behind the first car. The Court of Appeal said that the driver of the second car was not negligent since he was following the first car “at a distance of .forty feet, or thereabouts.” In the cáse at bar the second car was following the first at a distance of about 13 feet on a slippery street. .

Surely where the surface of the road is wet and slippery the driver of the following car must be unusually careful.

In Cosse v. Henley, 193 So. 206, 207, the Court of Appeal for the Second Circuit, referring to the operator of an automobile on a slippery street said:

> “Every circumstance dictated to him the necessity of the exercise of super precaution * *

There are, it is true, also decisions in which it has been held that the driver of the second or following car should be permitted to recover from the driver of the first or leading car and that those decisions are based on the finding in each of such cases that the sudden stopping of the first car was made necessary by a-n emergency which was created by negligence of its driver. Notably among those cases is Hill v. Knight, La.App., 163 So. 727, 729, in which the plaintiff was driving the following car and, as a result of the sudden stop' ping of the leading car, the plaintiff’s car crashed into the rear of that car. The Court of Appeal for- the Second Circuit held that the accident had ■ resulted from *889negligence of the driver of the leading car in stopping his car too suddenly and without warning of any kind, but the Court said:

> “We recognize and approve the rule of law that a following driver, should drive at such a speed and maintain such an interval that he can avoid collision with the leading car, under circumstances which should reasonably be anticipated by him. ,***”•

Furthermore, in that case the Court recognized the fact “ * * * that no hard and •fast rule can be laid down. -Each case must be decided' according to its own peculiar •conditions.” Surely it .will be noted that there is. a. clear ,distinction between the facts in the Hill case and this case, for ■here the circumstances of the heavy rain, the very strong wind, and the very slippery ■street were sufficient to put the driver of the second car on guard against any possible occurrence which might necessitate the stopping' of the first car. ’

While we would willingly follow the ¡reasoning of those decisions could we find facts which would seem to' justify that course, we find it a little difficult to understand the reasoning which lies back of. them. The general rule that the driver of the second car must maintain such distance' behind the leading car and must operate it at such speed as will permit of his bringing his car to a stop, even should the first car be brought to a sudden stop in an unexpected emergency, is based on the view that'the driver of the second car should be prepared to stop no matter what might be the cause of the stopping of the first car. If then it is negligence for a driver of the following car to operate his car so closely behind the first or at such speed that he cannot stop if the first car is brought to an unexpected stop in an emergency, we find it difficult to understand why such negligence should not exist regardless of the reason for the sudden stopping of the first car. If the first car should stop for some reason caused by negligence of the driver of that car, necessarily that negligence should prevent the driver of that car from recovering from, the driver of the second car for damages sustained by the first car. But if the situation is reversed and the driver .of the following car. is attempting to recover from the driver o.f the leading car, as was the case here, we fail to understand why it should be said .that because ’the driver of the 'first car was guilty of negligence in bringing it, to a stop, the negligence of the driver of the second car should'not-betaken into consideration/at all... . . *'■*•.

However, we realize, as we have stated, that there have, been such decisions and therefore we pass to ’a consideration of. the facts in an effort to determine whether there was negligence in. LeBlanc -in driving too closely behind the Barrosse car and whether • that negligence. had causal connection with the accident and should prevent recovery, or whether it would be-proper to say that the exception to the general rule should be applied and that the sudden stopping of the Barrosse car was the sole cause of this "áccident.' And a consideration of the facts leaves us convinced that the general rule should be applied here.

In the first place, the evidence leaves us convinced that the hood of the Barrosse car was not blown backwards over the Bar-rosse car and towards LeBlanc as he claims that it was and that it. did not, in any way, ■ confuse him or: interfere with his ability to bring his car to a stop. In the second place, the street, as we have already shown, was, according to LeBlanc himself, “very slippér'y” and wet. In the third place, there was an extraordinary brisk wind blowing. When asked: “Was it an extraordinary wind?” LeBlanc answered: “I guarantee that.”

While there is nothing to show just what was .the speed of the two cars, LeBlanc says that when he applied his brakes, “I slid 13 feet,” so that he must have been operating his car at a speed which, under existing' conditions, did. not permit of its ■being stopped in the sudden emergency. Under these circumstances, surely he was operating his' car too closely behind the Barrosse car. Ten or 12 feet, or even 13 *890feet, did not afford sufficient distance withr in which he might bring his car to a stop should a sudden emergency cause the driver ahead of him to bring his car to a sudden stop.

Our conclusion is that, though the. sudden blowing off of the hood of the Bar-rosse car was the result of negligence of Barrosse and that though that was the cause of the sudden stopping of his car, the accident would not have occurred but for the negligence of LeBlanc in following too closely behind the other car. This negligence on his part prevents recovery by plaintiff.

Accordingly, it is ordered, adjudged and decreed that the judgment appealed from be and it is annulled, avoided and. reversed, and that the suit of plaintiff be and it is dismissed at its cost.

Reversed.

REGAN, Judge

(dissenting).

In my opinion the only question posed for our consideration was one of law— that is, whether the general rule of law, or the classic exception thereto, should be applied to the facts herein as disclosed by the record?

The majority opinion has chosen to apply the general rule of law which has several variations, but in substance it is essentially this:

> “ * * * the driver of a motor vehicle has the right to follow a vehicle in front of him at a reasonably safe distance, and the mere fact that one vehicle is moving in close proximity to, and keeping up with, another does not of itself constitute negligence or negligence per se; but ordinarily it is the duty of the driver of the rear vehicle to keep such distance from the vehicle ahead as to enable him to meet the ordinary movements of other vehicles using the highway and to avoid possible injury. It has-been held that iio absolute rule can be laid down with respect to how closely an automobile may follqw another vehicle in the absence of any fixed distance prescribed by statute or other regulation, but the space which must be maintained between the two vehicles is to be determined according to the standard of reasonable care, taking into consideration all the surrounding circumstances, including such matters as the locality, road conditions, weather conditions, traffic conditions, the character of the vehicle being driven and of the vehicle ahead, and the speed at which the vehicles are proceeding.” 60 C.J.S., Motor Vehicles, § 323 b. ■

See Leon v. Neal, La.App., 34 So.2d, 276; McDaniel v. Capitol Transport Co., La.App., 35 So.2d 38; Billich v. Templeman Bros., La.App., 164 So. 261; Burns v. Evans Cooperage Co., 208 La. 406, 23 So.2d 165; Blashfield’s Cyclopedia of Automobile Law, Volume 1, Section 29, page 454.

The court in applying this general rule to the facts herein has held that while Bar-rosse was obviously negligent in failing to properly secure the hood of his vehicle, LeBlanc was contributorily negligent in maintaining an interval of “13 feet” between the two vehicles, which negligence was the proximate cause of the accident and, therefore, operates as a bar to the recovery of property damage incurred to his automobile by virtue of the collision with the Barrosse vehicle. Quere: If an interval of 80 feet had been maintained by Le-, Blanc, between the vehicles, would he then have been guilty of negligence? I shall discuss the answer to this question hereinafter.

It is my considered opinion that the facts disclosed by the record herein requires the application of the well-recognized and classic exception to the general rule' of law, i. e.:

> “The operator of the car behind is not, on the other hand, under a duty to be prepared for movements or changes of direction of the car ahead which could not reasonably be anticipated, and is not bound to anticipate that the vehicle ahead of him will, suddenly *891and without warning, turn across .'or obstruct his path. The operator of the following vehicle confronted with a sudden and unexpected maneuver of the forward car is not held to the same burden of avoiding a collision or other accident as a person who has had time for deliberate action, and, in case of a sudden emergency not due to his own fault, he is not required to pick and choose nicely and weigh correctly the means of avoiding the imminent danger. The driver of the following vehicle has the right to rely on compliance, by the driver of the vehicle ahead, with laws and regulations with respect to the use of the road, such as that the driver of the leading vehicle give timely warning,, by an appropriate signal, of his purpose to stop or decrease the speed of his car or to turn. * * *” 60 C.J.S., Motor Vehicles, § 323 a.

See Martin v. Breaux, La.App., 165 So. 743; Adams v. Morgan, La.App., 173 So. 540; Monroe Hardware Co. v. Monroe Transfer & Warehouse Co., La.App., 167 So. 498; Alengi v. Hartford Accident & Indemnity Co., La.App., 167 So. 130; Blashfield’s Cyclopedia of Automobile Law, Volume 1, Sec. 942; Berry on Automobiles, 6th Div., Vol. 1, Section 1034, page 870.

The space should be sufficient to enable the operator of the car behind to avoid danger in case of a sudden stop or decrease in speed by the vehicle ahead *tmder circumstances which should reasonably be anticipated by the following driver.*However, the negligence of the operator of the car behind is not established by the mere fact of running into the car ahead of him when that car stops suddenly, and he is not negligent in striking the forward vehicle *where the emergency causing such vehicle suddenly to stop was created by the forward motorist’s negligence and no condition rendering it necessary for him to stop quickly and withoiit giving proper signal existed.*McDaniels v. Capitol Transport Co., supra; Vienne v. Chalona, La.App., 28 So.2d 154; Weitkam v. Johnston, La.App., 5 So.2d 582; Stromer v. Dupont, La.App., 150 So. 32; Hill v. Knight, La.App., 163 So. 727; Leon v. Neal, supra.

The negligence of LeBlanc was not established by the mere fact that he maintained an interval of “13 feet” between the two vehicles, whose respective speed was conceded to be moderate, and of subsequently running into the rear of the Bar-rosse vehicle when that car stopped suddenly; and LeBlanc was not negligent in striking the Barrosse vehicle where the so-called emergency which caused Barrosse to abruptly apply his brakes and stop, as he testified, within “ten feet” was created by Barrosse’s absolute negligence in failing to properly secure the hood of his automobile.

I do not think that the facts disclosed by the record in this case required any anticipation on the part of LeBlanc relative to the gross negligence of Barrosse in abruptly stopping his car when the hood was blown therefrom. In fact, Barrosse was guilty of two gross acts of negligence, i. e., the failure to properly secure his hood and his abrupt stop without manifesting a warning signal of any kind. T am thoroughly convinced that if' Barrosse had observed one of several rules of the road available to him, such as slowly bringing his car to a stop, pulling over to the right curbing of the roadway, looking into his rearview mirror, or holding out his left hand as -a warning signal, LeBlanc could easily have avoided .the- collision.. Furthermore, I am of the opinion that the result reached in this case is diametrically opposed to-that appearing in Hill v. Knight, supra, a case remarkably similar to this one, wherein the exception to the general rule of law was applied.

■ In the Hill case two vehicles were proceeding out Centenary Boulevard in the City of Shreveport, at a reasonable speed of about 20 miles per hour, the truck leading and the coupe, driven by plaintiff, following at a distance of about *15 feet.*A boy walking on the sidewalk to the right and on the, lookout for a ride, saw the truck -pass and called to the driver, who *892abruptly and without signal or warning applied his brakes .and came, to a sudden stop. Though plaintiff’s car' was equipped with hydraulic brakes, in good condition, which he immediately applied, he could not avoid running' into the rear of the truck. Besides using the brakes, plaintiff attempted to cut to the left and pass the truck, which was traveling some *6*or 8 feet from the curb, but was prevented from doing so by on-coming traffic. There was no impediment or situation to suggest a sudden stopping of the truck. The court was of the opinion that:

> “We recognize and approve the rule of law that a following driver should drive at such a speed and maintain such an interval that he can avoid collision with the leading car, under circumstances which should reasonably be anticipated by him. We do not think the established facts in the instant case called for any anticipation on the part of plaintiff of the gross negligence of defendant’s driver in abruptly stopping his truck, without any signal or conduct suggesting such action or any apparent circumstance calling for it.”.

It is interesting to observe that some of the decisions emanating ■ from the appellate courts of this State, which conceived and applied the general rule of law hereinabove referred to, and predicated its- application on the fact that the plaintiff or the defendant, as - the case may be, maintained an interval or space between the vehicles of 10, 15, 20 or 25 feet and which constituted negligence, did so when automobiles had not attained their present state of improvement and there existed, relatively speaking, no congestion of automobile traffic. Whereas, for some years now, automobiles have occupied a mechanical status of relative perfection and motorists are confronted with almost an insurmountable congestion of automotive traffic. However, this general rule is still applied by courts by virtue of the doctrine of stare de-cisis, although the reason therefor, in many cases, is nonexistent, or, at least, should be modified. In order for traffic to move- rapidly and efficiently through the business area of a large city, every layman has observed, as a matter of public policy, the necessity of automobiles moving in very close proximity to each other. Quere: Does this constitute negligence per se? In my opinion, that is exactly what the majority of the court, in applying the general rule of law to the facts of this case, has held. If so, then practically every motorist who operates an automobile in the congested business district of New Orleans is guilty of negligence under the existing circumstances.

While the record does not reveal the exact speed at which both of these vehicles were traveling, the testimony appearing in the record to the effect *that the speed of both vehicles was modemte, is uncontra-dicted.*Arguendo, I will assume that their respective speed was approximately 25 miles per hour, therefore, in order for Le-Blanc to have maintained a scientifically safe distance between his vehicle and that of Barrosse, the interval separating the cars would have had to be 86.8 feet on a dry roadway, because that is the total braking distance required to stop at a speed of 25 miles per hour. The reaction time or the distance which a' vehicle travels before the brakes are applied is 36.7 feet, and the distance which a vehicle travels after the brakes are applied is 50.1 feet. The foregoing figures are well established as scientific facts and are readily available to anyone through the medium of scientific journals devoted to a discussion of the automotive vehicle, or the legal cyclopedias of automobile law. In view of the foregoing special facts and the exigencies created by our urban civilization can we, therefore, continue to insist that motor vehicles traveling at a speed of only 25 miles per hour must maintain an interval or distance between them of 86.8 feet in order to avoid being guilty of negligence when the following car runs into the rear of the leading car?

I am of the opinion that the courts should analyze the merits of each case individually, and then consider in connection therewith the immense scientific improvements of the *893motor vehicle, the changing traffic condi tions and thus modernize antiquated rules embedded in our' jurisprudence relative to the negligent operation of motor vehicles.

Dean Pound once observed — “Let us bestir ourselves to the end that taught law be that of living tissue and not that of dead fibre.” Another shortcoming, said he— “Was undue servitude to the bondage of precedent, a fetish of immutability.”

As a parting injunction to the legal profession Walter Clark, Chief Justice of the North Carolina Supreme Court in 1902, said:

> “The law should express the best sentiments of the age. It should move because all the world beside is moving. We should move up abreast of our age and not take our seats by the abandoned campfire of generations gone before.”

I am of the opinion that the judgment should be affirmed and, therefore, I respectfully dissent.