I think there should be judgment in favor of the plaintiff to the extent of the damage sustained by him as a result of the collision. There is a conflict between the testimony of the plaintiff, Misita, and Martin, the driver of defendant's truck, as to their positions on the road at the time and place of the impact. The plaintiff is supported on the subject by a negro boy who was driving his truck, while defendant's driver is supported by an admission that a party riding on his truck would, if present, testify as had been done by its driver, but the testimony of Octave Anglade, night marshal of Ponchatoula, supports the plaintiff, and, to my mind, creates the necessary preponderance, as to the position of each in the road at the time of the impact, in favor of the plaintiff.
Anglade, different from the other parties mentioned, had no apparent interest in the result of the case. The plaintiff requested him to come to the place, and he came within, say, 30 minutes after the accident, and looked into the cause of the collision. It had been raining some, and was drizzling rain at the time Anglade arrived at the scene, but he came so soon after the accident that the rain and traffic had not at that time obliterated the tracks made by plaintiff's truck and that of the defendant and the trailer it was pulling. He testified that he could see the tracks made by each truck and that the tracks showed that defendant's truck, at the place of impact, was from 12 to 14 inches on the wrong side of the center of the highway. Each of the trucks had on them a wide body, and the trailer pulled by defendant had on it a wide body.
The evidence convinces me that defendant's driver was driving, at the moment of the impact, to the left of the center of the road as stated by Anglade, and that, upon seeing the near approach of plaintiff's truck coming *Page 679 north meeting him, he swerved back to the side of the road on which he should have been driving, but not in time; it was too late. His truck was about 14 feet long, and was pulling a trailer about the same length, making a total length of about 28 feet, and, before he could get his length back to the side of the road on which it should have been, it was contacted with by plaintiff's truck, resulting in the damage sustained by the plaintiff.
I attach no importance to the testimony of Mr. Montagut in stating what he claims the tracks showed after he arrived at the place. He is in effect the defendant in the case. He did not reach the scene until about daylight, which was, I take it, four or five hours after the accident, and by which time the rain and traffic must have obliterated all reliable signs near the center of the road. As for defendant's reconventional demand, as I think he is responsible for the collision and for the damage suffered by the plaintiff, I feel as a matter of course that he should not be permitted to recover. For these reasons I dissent.