I think Beverly, defendant, liable in damages to Mrs. Rottman, the plaintiff, on the ground that he had the last clear chance to avoid striking her and did not avail himself of it as he should have done.
The evidence establishing this cause of action was received without objection, and must therefore be taken into account in the proper disposition of the case. The weather was fair, the road straight, and Beverly's view ahead was unobstructed as he drove north on the highway. Mrs. Rottman walked from the western toward the eastern side of the highway at a place which was not a regular crossing and not within the limits of any city, town, or village. Her course was diagonally across the road in such a way and course that her back was turned toward Beverly's on-coming automobile, which was behind her. She had her head down, and according to Beverly he realized that, although he sounded his horn, she had not seen him and did not look back. The situation called for prompt slowing down on the part of Beverly, who was driving at the time 40 or 45 miles an hour. He should have immediately applied the brakes strongly and effectively, so as to be able to stop quickly, if such became necessary in order to prevent running over her in the road. He, instead, chose to go forward without taking the precaution the necessity for which was obvious to his view ahead, taking a chance to miss her, until it was too late and struck her, when, had he timely taken ordinary care, he could have avoided striking her.
He says in his testimony that he first saw her somewhere up about Boudier's Filling Station, and that he at the time was 40 or 50 feet below the station.
Questioned, he said:
"Q. What did you do when you first saw her? A. I started blowing my horn, kept my hand on the horn button and started to put on my brakes slow at first. I thought I could cut in front of her: she had her head down. When I saw I couldn't do that I cut back on the highway on the concrete and struck her about the concrete road just a little past the center slab.
"Q. How far were you from Mrs. Rottman when you applied the brakes? A. At once when I saw her I stepped easy on the brakes, I thought she would see me and stop and when I saw she didn't see me I put them on right fast."
It is plain that Beverly was bound to have seen Mrs. Rottman sooner than he claims to have done if he was looking ahead in the direction he was driving. Holloway, riding in the automobile with Beverly, and seated on the front seat, says (I understand him to mean they) that he saw Mrs. Rottman when she was 60 or 70 yards distant ahead in the road. That Beverly upon seeing her stepped on his brakes lightly, sounded his horn, and when he saw she was not going to stop, he jammed on the brakes, but it was too late to miss her.
"Q. Do you know of anything that would have prevented him from stopping his car? Couldn't he have put his foot on the brake and stopped the car running 40 or 45 miles an hour? A. Yes he could have.
"Q. He didn't do it? A. No."
But suppose Beverly not to have been able to see Mrs. Rottman until she was up about Boudier's Filling Station and he 40 or 50 feet below, he then had time and space, it seems to me, in which to stop or check his speed or turn so as to avoid striking her if he had exercised ordinary care.
In Rogers v. Louisiana Ry. Nav. Co., 143 La. 58, 78 So. 237,238, the Supreme Court said: "And his widow can only recover if she can clearly show that the accident might have been avoided by the exercise of ordinary care on the part of the locomotive engineer, after the danger of the situation was, or should have been, by him discovered." The language mentioned was quoted with approval in Tyer v. Gulf, C. S. F. R. Co., 143 La. 177, 178, page 180, 78 So. 438, and by this court in Norwood v. Bahm,14 La. App. 261, page 266, 129 So. 183. Kelly v. Ludlum,9 La. App. 57, 118 So. 781, the court held (one of the judges dissenting on the subject of the care which should be exercised by the driver of an automobile when approaching some one walking *Page 77 ahead in the highway who has not looked back) as indicated by the syllabus:
"One who walks along a roadway does not have to maintain a lookout for automobiles approaching from his rear."
"The driver of an automobile, when approaching a pedestrian walking in the same direction must not drive so close to the pedestrian that a deviation of two feet by the pedestrian would cause an accident This danger must be anticipated by the driver."
Alexander v. Standard Coffee Co., 16 La. App. 286, 134 So. 261, was a similar case to the one just mentioned in which the same care was held to be a duty that the driver must observe. As indicated by the syllabus: "Motorist on highway approaching pedestrian from rear should have moderated speed and given warning, where, under circumstances, he should have realized pedestrian might step toward automobile. * * * Truck driver's negligence in approaching pedestrian from rear at too great a speed and in not sounding horn was proximate cause of accident."
In Morgan v. La Rice Milling Co., 8 La. App. 77, in which decedent suddenly started running diagonally across the road, this court by a majority opinion, held that the truck driver in that case was not negligent, but the opinion in the two cases first cited is in harmony with the general rule as appears from Cyclopedia of Automobile Law by Blashfield vol. I, p. 293, Subject, Pedestrian Between Crossings at Other Than Regular Crossings, and Cyclopedia of Automobile Law by Huddy, vol. 5, 6, p. 72 et seq., Subject, Pedestrians Between Crossings, etc. It is, of course, unnecessary to say that there are sudden acts, so unexpected that it is impossible to avoid the consequence of the act. In this instance it was Beverly's duty by the exercise of ordinary care on his part, after seeing Mrs. Rottman walking diagonally across the road ahead of him with her head down and without looking back to indicate that she had heard his horn or approach, to check his speed while he had time and opportunity to the extent that his automobile was under such control as he came up close to her, that he could stop or do whatever was necessary from the standpoint of humanity to avoid striking her. The evidence, I think, plainly shows that instead of doing as he should have done, he kept up his speed until it was too late, thereby placing her life on the chance and hazzard that he might in some way miss her with the result that he struck her and injured her greatly. I think the judgment holding him responsible is correct for the reasons above stated, and that the judgment should be on the grounds stated affirmed. I therefore dissent.