#### Leon A. NOLAND v. LIBERTY MUTUAL INS. CO. et al.

No. 4243.

Court of Appeal of Louisiana. First Circuit.

June 29, 1956.

Rehearing Denied Sept. 24, 1956.

*429Durrett & Hardin, Baton Rouge, Richard H. Kilbourne, Clinton, for appellant.

Taylor, Porter, Brooks, Fuller & Phillips, Robert Vandaworker, Baton Rouge, for appellees.

LOTTINGER, Judge.

Petitioner, Leon A. Noland, filed this suit for personal and property damages resulting from an automobile collision. The defendants are Jack Goudeau, the driver of the other vehicle, Wolf’s Bakers, Incorporated, Goudeau’s employer, and Liberty Mutual Insurance Company, the liability insurer of Wolf’s Bakery.

The Lower Court rendered judgment in favor of the defendants. Petitioner has taken this appeal.

The facts, which are substantially agreed upon, show that in the early morning hours, before daylight, on August 7, 1954, the petitioner was driving his automobile south toward Baton Rouge on Scenic Highway, at about eight miles north of the Village of Scotlandville. At the same time, defendant, Jack Goudeau, was driving a truck belonging to Wolf’s Bakery in a northerly direction on the same highway. The highway was black-topped a width of about twenty feet. In addition thereto, there were shoulders of about four feet wide on each side of the black-top. As the auto and truck neared the scene of the accident, the evidence discloses that the auto of petitioner had just completed a curve to its right, and petitioner testified that he could see the. truck’s headlights for a distance of some 1600 yards before he reached the curve. The truck was proceeding on a straight road, and at a speed of about 47 miles per hour. The car was going at a speed of about 30 or 35 miles per hour. At a distance of about fifty feet south of the curve, a car belonging to a person by the name of Sims was parked partially in the defendant’s truck’s lane without lights or signals at about a 45 degree angle and with its right front and two rear wheels on the shoulder, and its left front wheel on the black-top. Testimony indicates that the front left of the Sims’ car encroached about three feet on the black-top.

Petitioner’s car and defendant’s truck met just opposite the parked Sims’ car. *430The truck, for some reason unknown to its driver, swerved into its left lane and sideswiped the petitioner’s car, while petitioner’s car was well in its own lane.

The only question in dispute was as to the condition of the headlights on the petitioner’s vehicle. Petitioner claims that he was driving with his lights on dim the whole while. The defendant driver, on the other hand, contends that he saw ■Noland’s lights approaching before Noland came around the curve, north of Sims’ car, and stated further that as Noland’s car came around the curve that Noland’s lights “hit me in the face that’s when I asked for dim,” and that when he asked petitioner for dimmers, he was about 75 to 100 feet south of the point of impact and that petitioner immediately gave them to him. On receiving the dimmers from petitioner, defendant claims that he saw the Sims’ vehicle and immediately applied his brakes. State Police officers measured the defendant’s skid marks at 75 feet.

The Lower Court found the defendant driver guilty of primary negligence, and found petitioner guilty of contributory negligence. Petitioner’s suit was, therefore, dismissed in the Lower Court, and petitioner has taken this appeal.

There is no question that the vehicle of Sims was so parked partly in the road as to constitute a hazard. The question which first enters our minds is whether the driver of the defendant’s vehicle was guilty in failing to see this hazard under the circumstances of this case. The general rule, as stated by us in Washington Fire & Marine Insurance Co. v. Travelers Indemnity Co., La.App., 86 So.2d 743, 745, is as follows i

> “In the case of Buford v. Combs, La.App., 50 So.2d 469, 476, we used the following language:

> “ ‘ “The general rule is well established in this State to the effect that it is the duty of the operator of an automobile, while driving at night, to operate said automobile in such a manner that it can be stopped within the range of vision illuminated by the headlights of the car. It is also well settled that there may be exceptional circumstances which will serve to exculpate a driver who, because of those exceptional circumstances and in spite of due diligence, fails to discover some obstruction or some other vehicle on the road ahead of him, and that no fixed rule may be laid down by which it may be determined just what will constitute such exceptional circumstances. Woodall v. Southern Scrap Material Co., La.App., 40 So.2d 495; Hemel v. United States Fidelity & Guaranty Co., La.App., 31 So.2d 38; Gaiennie v. Cooperative Produce Co., Inc., 196 La. 417, 199 So. 377; Louisiana Power & Light Co. v. Saia, 188 La. 358, 177 So. 238; Dodge v. Bituminous Casualty Corporation, 214 La. 1031, 39 So.2d 720; Rea v. Dow Motor Co., La.App., 36 So.2d 750.

> “ ‘ “The facts in the cases of Gaiennie v. Cooperative Produce Co. and Dodge v. Bituminous Casualty Corporation, supra, both of which were decided by the Supreme Court, are similar •to the facts in the case now being considered. In the Gaiennie case, (196 La. 417, 199 So. 378) the vision of the plaintiff was ‘momentarily and intermittently impaired’ by the lights of approaching cars, and in meeting these cars he dimmed or deflected his lights so that the tilted beam of his headlights projected under the body of the parked truck, making it more difficult for him to see the truck. The body of the truck was suspended some three or four feet above the ground and extended back about four feet over the rear wheels. The Court held in that case that because of the exceptional circumstances, the general rule did not-apply and that plaintiff was not contributorily negli*431gent in running into the rear of the parked truck.

> “ ‘ “In the Dodge case plaintiff’s vision was impaired by approaching vehicles, but there is nothing in the opinion of the Court to indicate that plaintiff dimmed or deflected his headlights. And there is no mention in the opinion as to the distance the body of the truck was suspended above the ground, the distance it extended behind the rear wheels, or the color or design of the body of the parked vehicle. The evidence simply showed that plaintiff’s visibility was affected by the lights of oncoming traffic, and because his visibility was so affected, he did not see the unlighted truck parked at an angle on the highway until he was right on it. Under those circumstances the Supreme Court held that plaintiff was not contributorily negligent in colliding with the parked vehicle.” ’

> “In the Combs case we concluded that the driver of the car approaching from the rear could not, because of the exceptional circumstances existing, be charged with contributory negligence.”

Now the position of the driver of the defendant vehicle is similar to the position of the drivers of the overtaking vehicles in the above cases. Assuming, as is claimed by defendant, that the petitioner was driving with bright lights until the defendant asked for dimmers, we find the situation where the visibility of the approaching defendant driver would be greatly impaired. This fact, combined with the peculiar position of the Sims automobile in the roadway, would, we believe, come within the exceptions to the general rule as outlined about. Assuming, on the other hand, that the petitioner was driving with his lights on dimmers, as is claimed by-petitioner, we feel that the defendant’s vision would still be affected to such an extent as to render him unable to see the parked car under the peculiar circumstances here found.

The evidence indicates to us that the defendant was. driving at a speed of : from slightly in excess of 40 to 47 miles per hour. Blashfield Cyclopedia of Automobile Law and Practice Volume 9C, Sectipn 6237 states that an automobile traveling at.40 miles peí hour would require a braking distance of 71 feet to come to a stop after the brakes have been applied, and at that speed the average driver reacts to a warning in % of a second during which time the automobile has traveled 44 feet, and that traveling at the rate of 50 miles per hour requires a braking distance of 111 feet after the brakes have been applied, and that the average driver’s reaction time traveling at said speed of 50 miles per hour amounts to approximately 55 feet. As the skid marks of the truck prior to the collision were seventy-five feet in length, it was, therefore, evident that defendant was driving at least slightly greater than forty miles per hour. On the other hand, the evidence discloses that the truck had a governor, and that its top speed was forty-seven miles per hour. It is, therefore, clear that the truck was traveling at a speed of 47 miles per hours, or less. Although the defendant testified that he first noticed the parked vehicle when he was only about 75 to 100 feet from it, it appears that he must have been some greater distance away when he first noticed the parked vehicle as there must have been some reaction time before he actually applied the brakes. Even considering, for the sake of argument, that the truck was going at a speed of 47 miles per hour, which is in excess of the speed limit (45 miles per hour for trucks, LSA-R.S. 32:225 as amended by Act No. 547 of 1954) we do not'believe that such would have been a proximate cause of the accident.

It is our opinion that the defendant driver was guilty of no act of negligence which would make him primarily liable for the accident. The illegally parked vehicle of Sims, in that peculiar position or angle, coupled with the lights of the oncoming car of petitioner, constituted a trap which was unseen, and impossible to be seen, by *432the defendant driver until it was too late. Faced with the sudden emergency of the impending collision, the defendant driver immediately applied his brakes in an attempt to bring his truck to a stop, and to avoid the accident. Faced with this sudden emergency,' not of his own making, we do not feel that he can be held accountable for swerving into the left lane of traffic. Had the roadway been just a bit wider his action might have avoided the accident.

The Lower Court found the defendant to be guilty of primary negligence, and found the petitioner to be guilty of contributory negligence. We feel that this was error on the part of the Lower Court, as we have found no primary negligence on the part of the defendant. However, the judgment of the Lower Court was correct, in that there was judgment for defendant and petitioner’s suit was dismissed.

For the reasons assigned, the judgment of the Lower Court will be affirmed, all costs of this appeal to be paid by petitioner.

Judgment affirmed.

TATE, Judge

(dissenting).

It is with some hesitation that I disagree with the carefully considered and well written majority opinion.

We have denied recovery herein to a motorist who was completely free of negligence, struck while proceeding in his own proper lane of traffic by a vehicle approaching from the opposite direction which suddenly swerved from *its*proper lane into plaintiff's path. Under similar circumstances we recently denied recovery to a driver and two passengers struck in their own lane of traffic by an oncoming car which swerved from its lane into theirs, Mershon v. Cutrer, La.App., 85 So.2d 639, 645 (three companion cases.)

It is to be noted that in each of these suits by an admittedly blameless motorist, the sole proximate cause of the accident was held to be the negligence, not of the oncoming motorist, but of some third party who was not a party to the proceeding and not represented therein. The standard we have followed in reaching this result is to' discuss whether *in a lawsuit between the third party and the oncoming motorist,*an accident *as between them*would have been caused solely by the negligence of the third party, or concurrently by that of the third party and the oncoming motorist. But this determination is based on the record educed *in a lawsuit between the blameless driver and the oncoming motorist,*in which the third party is not a party defendant nor represented by counsel.

Application of this seemingly logical standard, however, produces an illogical result. To recover in his suit against the oncoming driver, the blameless motorist must prove by a preponderance of the evidence that the third party’s negligence was *not*the sole proximate cause of the accident as between the third party and the oncoming other motorist; for the plaintiff bears the burden of proving his case in each instance. Contrariwise, however, the oncoming other motorist to recover in his own suit against the third party has the burden of proving that the third party’s negligence *was*the sole proximate cause of the accident. So that even with the doubtful assumption that the identical evidence would be produced in the two different suits, application of these different legal standards could very well produce the result that recovery is denied the oncoming other motorist in his suit against the third party because the oncoming motorist had not preponderantly proved that the *sole*proximate cause of the accident *was*the third party’s negligence, rather than the concurrent negligence of both motorists; whereas recovery is likewise denied the blameless motorist in the companion suit by him against the oncoming motorist, because the plaintiff in the companion suit had not preponderantly proved that the admitted negligence of the third party was *not*the sole proximate cause of the accident.

The doubts engendered by such illogical possibilities have led me to the conclusion *433that in the cited cases and the present we have overlooked an important principle: The standard of care owed by a motorist using the highways is not absolute and invariable, but varies greatly according to the circumstances of the time and place of the accident; *and it also varies relatively according to the different classes or types of persons also using the highway.*

A motorist may owe one duty to traffic directly in his own lane ahead; but he may owe another and a greater duty to traffic approaching in its own lane, at least to the extent that he will not encroach onto this other lane. A lookout which may be legally sufficient to avoid liability for damage to traffic in his own path, may be insufficient to avoid liability when the motorist has failed to see such traffic in time to avoid swerving into the other lane so as to cause damage to other traffic proceeding properly therein with due caution. Actions in an emergency caused by the negligence of traffic in the motorist’s own path which might be legally excusable in an action by the motorist against those responsible for wrongfully blocking his own lane of traffic may nevertheless be negligent when they cause injury to another rightfully proceeding free from fault in his own kne.

While only ordinary effort might be required to avoid colliding with obj ects which should not be blocking the stream of traffic in the driver’s own lane, in a suit by the motorist against such blocking person; yet extraordinary efforts may be required of such driver so that he avoid striking innocent motorists proceeding in the other lane of traffic reserved for them, in an action by such injured blameless motorists against the driver. The latter may be held to a higher degree of care to avoid invading the stream of oncoming traffic, with such readily foreseeable tragic results.

This principle is not revolutionary in our law.

For instance, as pointed out by Judge Hardy as organ of the Second Circuit in

Wilson v. Yellow Cab Co. of Shreveport, Inc., La.App., 64 So.2d 463, at page 466, the identical conduct of a taxi driver rendered him liable there to a passenger in his cab, that in Bechtold v. Commercial Standard Insurance Co., La.App., 31 So.2d 894, 896, was held to be non-negligent with regard to traffic approaching from the inferior street: the distinction being that the duty owed by the driver to the other traffic was only that of “reasonable prudence”, while he owed to his passenger the duty of “ ‘the highest degree of care.’ ” Therefore, “The omission of *any*act of care or caution *no matter how slight in degree*is sufficient to sustain a finding of liability, in the instant case.” 64 So.2d 466.

Likewise, the same conduct (failure to slacken speed and to be alert) of a motorist may not be negligent with regard to adult persons working or playing off the side of the road, but may nevertheless constitute actionable negligence with regard to children identically situated, who suddenly run into the roadway, Guillory v. Horecky, 185 La. 21, 168 So. 481, Chief Justice Fournet, organ of the Court.

Somewhat similarly, the landlord may owe one duty to his tenant, another to an invitee, yet another to a licensee or trespasser; and conduct excusable as to one class of individuals may constitute actionable negligence as to those in other categories. See Mills v. Heidingsfield, La.App., 192 So. 786 (certiorari denied).

As to the particular situation before us now, it should be remembered that the usual rule is that “the driver of an automobile is guilty of negligence in driving at a rate of speed greater than that in which he could stop within the range of his vision”, Louisiana Power & Light Co. v. Saia, 188 La. 358, 177 So. 238, 239. However, the doctrine has developed and is now well recognized that such driver’s negligence does not constitute a contributory proximate cause barring recovery in a suit by him against one who has blocked his legal path, when there are excusable *434features such as blinding lights, the blending coloring of the parked object, etc., Dodge v. Bituminous Casualty Corp., 214 La. 1031, 39 So.2d 720; Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377.

But although such negligence may be held excusable in a suit against the tort-feasor who has created the risk by blocking traffic, nevertheless it may be held actionable negligence in other situations, such as in a suit by the owner of cows which walked into the motorist’s pathway, Geoghegan v. Greyhound Corporation, 226 La. 405, 76 So.2d 412.

Thus while it appears to me (as the majority opinion holds) that defendant motorist’s failure to maintain such lookout and control as to stop within the range of his vision did not breach the duty of merely “reasonable prudence” that he owed to the Sims’ car so negligently parked on the shoulder as to protrude into defendant’s lane of traffic; nevertheless his conduct did not maintain the greater duty of care necessary on his part to avoid swerving suddenly into plaintiff’s lane of traffic in which plaintiff was proceeding with due care.

It is to be noted that the District Court found defendant driver primarily negligent in failing to avoid the accident, and that the majority of this court recently denied recovery by reason of his contributory negligence as a proximate cause of the accident to a motorist who like defendant driver here struck a truck parked in his lane of the highway, Suire v. Winters, La.App., 88 So.2d 254. This illustrates to me that there is sufficient question as to whether defendant motorist was “reasonably prudent” as to illustrate without doubt that (even if he was) he did not exercise the greater degree of care required to avoid causing injury to opposing traffic by invading the lane of the highway reserved for such opposing traffic.

While these views are expressed with some hesitation, since in most instances the principle is implicit rather than express, considerable support for the thesis of the relative nature of “proximate cause” and “negligence” is contained in what the writer feels are two landmark contributions to legal thinking recently published in Louisiana, namely: McDonald, “Proximate Cause in Louisiana”, 16 La.Law Rev. 391; Dias, “The Breach Problem and the Duty of Care”, 30 Tulane Law Review 377.

For the above and foregoing reasons, I respectfully differ with the views of my learned and esteemed brethren of the majority.