Opinion
No. 82-CA-251.
May 17, 1983.
APPEAL FROM 1ST PARISH COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, HONORABLE A.C. C'ANTONIO, J.
Charles G. Smith, Bryan, Nelson, Allen Schroeder, New Orleans, for defendants-appellants.
Sally A. Shushan, Sessions, Fishman, Rosenson, Boisfontaine Nathan, New Orleans, for plaintiffs-appellees.
Before CHEHARDY, BOWES and GAUDIN, JJ.
Appellants are Ernest R. Morgan, et al., who were cast in judgment because of Morgan's negligence in the operation of a garbage truck. For reasons following, we affirm the judgment of the 1st Parish Court of Jefferson Parish.
Morgan was driving on Clifford Drive in Metairie, Louisiana, when he came to the intersection of Clifford with West Esplanade Avenue. Morgan testified he came to a halt because of a stop sign, then made a right turn onto West Esplanade, the clearly favored roadway.
Before turning, Morgan said he saw ". . . a school bus coming . . ." but ". . . no other traffic. . ."
However, an automobile driven by Nickie Bergeron was approaching on West Esplanade and it ran into the rear end of the garbage truck approximately 40 to 50 feet from the intersection.
The car Bergeron was operating was owned by Pamela Raneri and insured by State Farm Mutual Automobile Insurance Company. The auto sustained damages of $1,013.60, the amount of the judgment.
Bergeron testified that he was proceeding at 35 miles per hour and was about 100 to 150 feet from the garbage truck when it entered West Esplanade. Bergeron said: "I saw him pull out. I was right there."
Further, Bergeron stated that he applied his brakes when he saw the garbage truck and tried to avoid it, but he ". . . couldn't get around him. . ."
Although Morgan gave a different version of the accident, as did Adolph Woods, Morgan's supervisor who was at the scene, the trial judge chose to believe Bergeron, saying:
"Based on the evidence presented, the court finds that the accident was a result of negligence on the part of the driver of the garbage truck. This is borne out further by the conflicting testimony between the witnesses who testified for the defendant.
A careful examination of the record indicates that there was a reasonable basis for the trial judge's factual conclusions in favor of Bergeron, and we cannot say that the findings were clearly erroneous. See Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978), and numerous other opinions citing the "manifest error" doctrine.
Appellants suggest that Bergeron was driving faster than 35 miles per hour, but the testimony does not substantiate this. Neither Morgan nor Woods saw Bergeron's vehicle prior to impact, and the impact was relatively mild.
CONCLUSION
We affirm the judgment in favor of Miss Raneri and State Farm and against Morgan, Jefferson Disposal Company, Inc., and American Southern Insurance Company, with all costs to be paid by appellants.
AFFIRMED.