#### Gloria D. FAIRFAX, Plaintiff and Appellee, v. AMERICAN CASUALTY COMPANY OF READING, PA., et al., Defendant and Appellant.

No. 3052.

Court of Appeal of Louisiana, Third Circuit.

May 27, 1970.

Rehearing Denied June 25, 1970.

Brame, Stewart & Bergstedt, by Frank M. Brame, Lake Charles, for defendant-appellant.

Cormie & Morgan, by Robert E. Morgan, Lake Charles, Burch Downman and Arthur L. Schecter, Houston, Tex., for plaintiff-appellee.

Plauche, Sanders & Smith, by Allen L. Smith, Jr., Lake Charles, for defendant-ap-pellee.

Before TATE, HOOD and CULPEP-PER, JJ.

CULPEPPER, Judge.

This is a companion case to Smith v. American Casualty Company of Reading, Pa., La.App., 236 So.2d 240, in which a separate opinion is rendered by us this date. These are suits for damages arising *244out of the same automobile accident. Plaintiff, Gloria Fairfax, was a passenger in an automobile driven by Eligh Smith and insured by Members Mutual Insurance Company. The Smith vehicle collided, during hours of darkness, with the rear of an unlighted pickup truck owned by Sub-Sea Equipment & Supply Company, driven by its employee, John R. Schertler, and insured by American Casualty Company of Reading, Pa.

Gloria D. Fairfax sued Johnny R. Scher-tler, driver of the Sub-Sea truck, its insurer, American Casualty Company of Reading, Pa., and Members Mutual Insurance Company, liability insurer for Eligh Smith. American answered and filed an alternative third party demand against Eligh Smith for contribution. Schertler was never served and is not before the court.

In the companion case, Eligh Smith sued American Casualty Company of Reading, Pa., insurer of the Sub-Sea truck. In that suit, Members Mutual Insurance Company filed an intervention on its subrogation for automobile property damage paid to Smith.

The district judge found both drivers negligent. Judgment was rendered in favor of Mrs. Fairfax against the insurers of both vehicles for the total sum of $21,843.-29, the judgment against Members Mutual being limited to its coverage of $10,000. Judgment was also granted in favor of American Casualty Company of Reading, Pa., on its third party demand against Eligh Smith, in the sum of $10,921.64. Members Mutual and Eligh Smith appealed.

The scene of the accident is on Interstate Highway 10 near Vinton, Louisiana. This is a four-lane highway running generally east and west. The speed limit is 70 miles per hour. The accident occurred at about 10:00 p. m. on July 26, 1968. The weather was cloudy and it was very dark.

Eligh Smith, with Mrs. Fairfax as a passenger, was driving in the right-hand lane for east-bound traffic at a speed of about 65 miles per hour. For several miles he had been following another vehicle being driven by one Lodie Adams in the same lane and at about the same speed. Adams testified he suddenly saw a slow moving east-bound flatbed pickup truck, without taillights or headlights (the truck later determined to be owned by Sub-Sea Equipment & Supply Company) in the right-hand lane ahead of him. He switched on his bright lights, swerved to the left and was able to miss the truck by a few inches but said “I don’t think I could miss it again.”

Smith testified he saw Adams switch his lights on high beam and swerve into the left-hand lane. He then also switched his lights on high beam and suddenly saw the flatbed of the truck ahead of him. Smith applied his brakes but was unable to swerve to his left because of other eastbound traffic in the left-hand lane. He ran into the rear of the pickup truck. Both Smith and Mrs. Fairfax sustained bodily injuries.

American Casualty, the insurer of the pickup truck, concedes its driver was negligent for proceeding slowly along the highway without any taillights. The principal question posed by these appeals is whether Smith was also negligent for failing to keep a proper lookout and failing to see the flatbed truck in time to avoid the accident.

The district court’s finding that Smith was negligent is based on these factors: (1) Adams was able to miss the unlighted pickup truck, so Smith should also. (2) Adams and his wife testified that after they had successfully passed the pickup truck, Adams turned on his emergency blinker lights, slowed down and “weaved” his automobile from side to side in an effort to warn Smith of the unlighted truck. (3) The truck was proceeding at a speed of 30 to 35 miles per hour and Smith at 65 miles per hour, which means that they were closing at only the rate of 30 miles *245per hour, which should have given Smith time to see the truck and avoid the accident. (4) Mrs. Adams testified that from the time they swerved until the collision was approximately 25 seconds, which indicates Smith had plenty of time.

We are unable to agree with the trial judge that Smith should have seen the unlighted truck in time to avoid the collision. It is true that Adams saw the truck in time to swerve and avoid striking it. However, Adams testified it was “A little bit too close for comfort. I don’t think I could miss it again.” Furthermore, Smith had been following Adams for a considerable distance and had no opportunity to see the unlighted truck until Adams swerved. It is apparent Smith was keeping a lookout ahead since he saw Adams switch his lights and swerve. Smith was looking ahead • as best he could. He simply was unable to see the unlighted truck until it was too late.

As to Adams’ attempt to warn Smith by blinking his lights, Smith testified he did not see any such signal. However, even if he had seen such a signal, he could only have guessed as to its meaning and it would not have improved his opportunity to see the unlighted truck.

We give little weight to the testimony of Mrs. Adams that 25 seconds elapsed between the time they swerved and the time of the collision. She had been asleep on the back seat and must have been startled and alarmed by the sudden swerving of the car. At their speed of 65 miles an hour, the Adams and Smith vehicles would have gone a distance of about one-half mile in 25 seconds. Mrs. Adams’ estimate of the time which elapsed is obviously too long.

There is little dispute as to the law. The insurer of the truck relies on the general rule that a motorist is held to have seen an object which, by the use of ordinary care and prudence, he should have seen in time to avoid an accident, and he must drive at such a speed that he can stop within the range of his vision, Lewis v. Quebedeaux, La.App., 134 So.2d 93 (3rd Cir.1961) and the cases cited therein.

Smith’s insurer relies on the exception to the above stated general rule. This exception exonerates a night motorist who strikes an unexpected and unusual obstruction, which he had no reason to anticipate, Vowell v. Manufacturers Casualty Insurance Company, 229 La. 798, 86 So.2d 909. Included in the progeny of the Vowell case are several decisions particularly applicable here, which hold that a stopped or slowly moving unlighted vehicle is an unusual obstruction, which the following motorist has no reason to anticipate, Stelly v. Fidelity & Casualty Company of New York, La.App., 201 So.2d 24 (3rd Cir.1967) writ of certio-rari refused; Shively v. Hare, La.App., 189 So.2d 12 (1st Cir.1966); Driscoll v. Allstate Insurance Company, La.App., 223 So.2d 689 (4th Cir.1969); Miller v. Kinney, La.App., 213 So.2d 124 (3rd Cir.1968).

The present case clearly falls within the exception to the assured clear distance rule. We find Smith was free of negligence. The accident was caused solely by the negligence of the driver of the unlighted truck.

For the reasons assigned, the judgment appealed is amended and recast to read as follows:

It is ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Gloria D. Fairfax, and against the defendant, American Casualty Company of Reading, Pa., in the sum of $21,843.29, together with legal interest thereon from date of judicial demand until paid.

It is further ordered, adjudged and decreed that there be judgment herein in favor of the third party defendant, Eligh Smith, and against the third party plaintiff, American Casualty Company of Reading, Pa., rejecting the third party demand.

All costs in the lower court, as well as the costs of this appeal, are assessed *246against the defendant, American Casualty Company of Reading, Pa.

Affirmed, as amended and recast.

HOOD, J., dissents and assigns written reasons.

HOOD, Judge

(dissenting).

I agree that the driver of the pickup truck was negligent in operating his truck on a public highway without taillights. I disagree with my colleagues, however, in their holding (reversing the trial court) that the driver of the following vehicle, Eligh Smith, was free from negligence.

The majority specifically recognizes the well settled rule of law, “that a motorist is held to have seen an object which, by the use of ordinary care and prudence, he should have seen in time to avoid an accident, and he must drive at such a speed that he can stop within the range of his vision.” See Lewis v. Quebedeaux, 134 So.2d 93, (La.App. 3 Cir., 1961), and numerous other cases in which that rule has been applied. This general rule is often referred to as the “assured clear distance rule,” and the majority concedes that “there is little dispute” as to that law.

As also indicated by my colleagues, in some instances exceptions to this general rule may be made, and when that occurs the motorist who runs into a stationary object on the highway may be exonerated from fault. Exceptions to this general rule may be made, however, only where such *“unusual conditions"*and *“extraordinary circumstances”*exist in a particular case that the motorist is unable to see the stationary object in the road ahead of him in time to avoid an accident, even though he was maintaining a proper lookout and was exercising the care of a reasonable and prudent driver.

Our Supreme Court held that the general rule did not apply, because of unusual and extraordinary circumstances, in the leading cases of Kirk v. United Gas Public Service Co., 185 La. 580, 170 So. 1 (1936); Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377 (1940); Dodge v. Bituminous Casualty Corporation, 214 La. 1031, 39 So.2d 720 (1949); and Vowell v. Manufacturers Casualty Insurance Company, 229 La. 798, 86 So.2d 909.(1956). The Kirk case involved a collision with the body of a dark colored yearling which had been killed earlier and left on the highway. The other three cases involved collisions with parked vehicles. In each such case the driver of the moving vehicle ran into a *stationary*object on the highway, and the court found that the circumstances were so *unusual*and *extraordinary*that no motorist who was carefully watching the highway ahead of him could reasonably have seen the object in time to avoid a collision.

These decisions of our Supreme Court have been followed by other courts of this state, including this court. Recently, however, a majority of this court expanded the exception to the general rule, and held that the driver of a motor vehicle was free from negligence when he ran into the rear of a *moving*vehicle, and where no unusual and extraordinary circumstances existed other than the fact that the lead vehicle’s taillights did not meet the specifications required by law. See Stelly v. Fidelity & Casualty Company of New York, 201 So.2d 24 (La.App. 3 Cir., 1967).

In the Stelly case the majority noted that the above stated general rule, which they referred to as the “assured clear distance rule,” is being eroded. And, they stated that, “The thrust of this jurisprudence is a continuous departure from the rule that a night motorist must drive with such meticulous care that he can bring his vehicle to a complete stop within the range of vision afforded by his headlights.” They then proceeded in that case to emasculate the general rule which they acknowledge in the instant suit is still the law. I dissented in the Stelly case.

In the instant suit my colleagues have gone further. Here, the lead vehicle, a *247pickup truck, was being driven at a substantial speed in its proper lane of traffic, and the following motorist, Eligh Smith, overtook it and ran it down. It is inconceivable to me, under the facts presented here, that Smith did not see the truck ahead of him. The sole basis for the majority’s holding is that the taillights on the truck were not burning and that the truck was not being driven as fast as was the overtaking Smith car.

Substantially the same issues are before us here as were presented in the Stelly case. The facts here, however, are much stronger to the effect that the general rule should be applied. The material facts were not stated very fully in the majority opinion, and I feel that a further discussion of them is necessary.

Shortly before the collision occurred the pickup truck was in the lead, the Adams station wagon was second, and the Smith car was in the rear. The pickup truck was being driven between 30 and 35 miles per hour. Adams was driving 65 miles per hour as he approached the truck from the rear, and Smith also was driving at a speed of about 65 miles per hour behind Adams. Adams saw the truck ahead of him even though he had his lights on low beam. He then switched his lights on high beam, applied his brakes, swerved to his left and went safely around the truck. The action of Adams in turning on his bright lights clearly illuminating the truck, suddenly applying his brakes and swerving sharply to his left should have served as an adequate warning to Smith that something was on the highway.

Smith, who apparently was a considerable distance behind, saw Adams switch his lights to high beam and swerve to his left to go around the truck. Smith then immediately switched on his bright headlights also, and he left his headlights on high beam until the accident occurred. The pickup truck should have been much more obvious to Smith than it was to Adams, since Smith had his bright headlights on at all times as he approached. Smith offers no explanation at all as to why he didn’t see the truck ahead of him.

After passing the truck, Adams reached into his glove compartment and turned on his “emergency blinker lights” to warn Smith of the presence of the truck. Adams then got ahead of the truck, reduced his speed to that of the pickup truck, and then with his blinker lights on he began weaving from one lane of the highway to the other. Each time he went into his right lane, Smith could not help but see the truck silhouetted against Adams’ lights, if Smith had been maintaining a proper lookout. The collision occurred while Adams was weaving back and forth across the highway, and when he was about 100 feet in front of the pickup truck. Smith offers no excuse for having failed to see the truck under all of those circumstances. He, in fact, did not even see the emergency blinker lights on the Adams vehicle.

Mrs. Adams was lying down in the station wagon when her husband first started to pass the pickup truck. She sat up as they were engaged in the passing maneuver, she looked back and saw the Smith vehicle behind, and she then saw the parking lights on the front of the truck come on for about two seconds. After this occurred, Mr. Adams reduced his speed and began weaving from lane to lane in front of the truck. Mrs. Adams testified that about 25 seconds elapsed between the time she sat up in the station wagon and the time of the accident. The majority brushes this testimony aside with the statement that her estimate “is obviously too long.” I think my colleagues erred in reaching that conclusion. In the first place, Mrs. Adams’ estimate of the time was actually tested by a clock in the courtroom, and this test indicated that about 25 seconds had elapsed. Secondly, the trial judge found her estimate to be correct. Third, at least that much time must have elapsed in order for all of the things to occur which did take place between the time she sat up in the station wagon and the time of the acci*248dent. And, finally, Smith must have been some distance behind Adams, because Smith stated that he could see the taillights of the Adams car just before it swerved to pass the truck, but that he was not close enough to see whether it was a car or a truck. The amount of time which elapsed is immaterial except that it shows that Smith had adequate warning that something was in the road ahead of him long before the accident occurred.

The evidence also shows that although the taillights of the pickup truck were not burning when the accident occurred, there were two taillights on the truck, each of which was equipped with a “reflective lens” which was three to four inches in diameter. The surfaces of these lenses were designed to reflect light from the headlights of following vehicles, even though the taillights of the truck were not burning. The testimony of Adams and the investigating officer confirms the fact that the taillight lenses on the truck did reflect light from the headlights of following vehicles.

The highway where the accident occurred was straight and level. Smith concedes that visibility was good, that he was not confronted with the oncoming headlights of other vehicles, and that there was nothing to distract him from watching the highway ahead of him. The evidence shows that he did not apply his brakes or reduce the speed of his car before the collision occurred.

Under these facts the majority holds that there existed such unusual and extraordinary circumstances that Smith must be exonerated from negligence. I cannot agree.

The basic difference between my views and the views of the majority, as expressed here and in the Stelly case, relates to the duties of a motorist on a public highway. I believe that the motorist has a duty to watch the highway ahead of him, to see objects on it which by the use of ordinary care and prudence he should observe in time to avoid an accident, and to drive at such a speed that he can stop within the range of his vision. This is the established law, as I understand it, and it applies during daylight hours as well as at night.

The majority obviously feels that a night motorist has the right to assume that there will be no obstructions on the highway, and that, relying on that assumption, he may drive at a speed in excess of that which would enable him to stop within the range of vision afforded him by his headlights.

In the instant suit, and in the Stelly case, the majority has gone so far as to hold that a truck being driven along the highway, in the same direction as but slower than the following motorist, constitutes an obstruction on the highway.

Just a few days ago, a majority of this court rendered a judgment which I think is directly contrary to the one being rendered here. See Hathorn v. McKay, La.App., 236 So.2d 74. In the Hathorn case the general rule was applied and the driver of the moving vehicle was held to have been negligent in failing to see a stalled car on the highway in time to avoid an accident. The approaching driver in that case had less reason, I think, to anticipate an obstruction in the highway than did Smith in the instant suit. Yet, the majority held that “he was clearly negligent in his heedless onset without slowing and putting his car under such control as to avoid the hazard ahead reasonably to be anticipated.”

In my opinion, the general rule, as stated in Lewis v. Quebedeaux, supra, is applicable here, and the judgment rendered by the trial court thus is correct.

For these reasons, I respectfully dissent.

On Application for Rehearing.

En Banc. Rehearing denied.

HOOD, J., is of the opinion that a rehearing should be granted for the reasons assigned in his dissenting opinion.