The question for decision in this case is whether plaintiff, in colliding with the rear of the unlighted parked truck, was guilty of negligence which contributed to the accident. Albeit, certiorari was granted for the specific purpose of considering whether the opinion of the Court of Appeal conflicts with our decision in Louisiana Power Light Company v. Saia,188 La. 358, 177 So. 238, which is neither discussed nor even cited in the main opinion.
As I understand it, the result reached herein is predicated on two views, (1) that neither plaintiff's petition nor the proof submitted by him exhibits contributory negligence on his part and (2) that, in any event, his fault is of no moment because subdivision (c) of Rule 15 of the Highway Regulatory Act, Act No. 286 of 1938, renders *Page 1040 defendant liable under all circumstances and conditions. I will consider these rulings in their reverse order.
Rule 15 of the Highway Regulatory Act of 1938 prohibits the parking of vehicles on highways when it is practicable to leave them standing off the paved or travelled portion of the thoroughfare. And it provides that, if the vehicle is parked a half hour after sunset or before sunrise, it shall display appropriate signal lights thereon sufficient to warn approaching traffic of its presence. Subdivision (c) of the rule, on which the majority strongly relies, declares that the rule shall not apply to a disabled vehicle which is compelled to stop on the highway and provides that, in such cases, the owner or driver thereof shall be obliged to remove it as soon as possible and that "until removed to protect traffic from same at his responsibility."
In the case at bar, there can be no doubt that defendant was guilty of negligence. No one questions this, as the truck was parked at an angle on the public highway without lights. But this does not mean that plaintiff is entitled to recover without showing that, due to the surrounding conditions and circumstances, he was not able to detect its presence in time to bring his car to a stop. Yet the decision herein, employing subdivision (c) of Rule 15 of the Highway Act as a predicate, indicates that plaintiff must recover because defendant's violation rendered it absolutely liable, irrespective of plaintiff's fault. This *Page 1041 conclusion has the effect of abolishing the law of contributory negligence in cases involving a violation of Rule 15 of the Act. I cannot believe that the Legislature intended such a result.
The majority also resolved that plaintiff's petition and the evidence offered by him exhibited a freedom of negligence on his part. To this, I cannot agree as it is my view that the allegations of the petition, and more particularly the proof adduced in support thereof, are insufficient to take the case out of the rule approved in Louisiana Power Light Company v. Saia, supra, that, where a motorist runs into the rear of a parked vehicle, he must affirmatively show the presence of unusual circumstances and conditions in order to be excused from negligence, even though the accident occurs at night. Compare Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377.
In the Saia case, plaintiff's automobile ran into a parked and unlighted truck and trailer on U.S. Highway 90 during the night time. It alleged in its petition that, although its driver was exercising due care in observing the highway ahead of him, he was unable to and did not see the unlighted truck and trailer in time to avoid striking it. In holding that the petition showed that plaintiff's driver was guilty of contributory negligence, in that he had violated Section 9, Subd. (g) 1 of Act. No. 21 of 1932, the State Highway Regulatory Act (then in force), requiring *Page 1042 every vehicle to be equipped with burning headlights of sufficient strength to make clearly discernible any person on the highway for a distance of 200 feet ahead, the court said [188 La. 358, 177 So. 239]:
"In applying this provision of the statute, the courts have concluded 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 running into it, and 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. O'Rourke v. McConaughey, La.App., 157 So. 598-606; Hutchinson v. [T. L.] James Co., La.App., 160 So. 447; Sexton v. Stiles, 15 La.App. 148, 130 So. 821, 828; Blahut v. McCahil, La.App., 163 So. 195; Goodwin v. Theriot, La.App., 165 So. 342; Waters et al. v. Meriwether Transfer Co., 18 La.App. 18, 137 So. 578.
"It does not appear from the record that the plaintiff at any time offered an amendment to its petition to explain that there were any unusual circumstances which might have puzzled and confused the driver, as a prudent and careful operator, and prevented him from seeing the parked vehicle. * * *"
In the instant case, plaintiff has not exhibited any unusual circumstances which prevented him from observing the parked truck in time to avert a collision. The sole allegation of his petition is that "said parked truck was not visible to petitioner when *Page 1043 cars approached from the opposite direction, petitioner representing that at the time of the collision he was driving his automobile at a moderate speed, headlights burning properly, was keeping a careful lookout ahead and said parked truck suddenly loomed up in front of him, * * *." If plaintiff's headlights were burning properly and he was keeping a careful lookout, there was no reason why he could not see the truck, unless it be that he means, by his allegation that the truck was not visible "when cars approached from the opposite direction," that he was blinded by the headlights of those cars. But he does not allege this and he has at no time offered to amplify his petition in that respect. His averment that he was keeping a careful lookout is merely a conclusion; the law charges him with the duty of seeing that which could be seen by a prudent motorist.
But, even if it be generously assumed that the allegations of the petition are sufficient to eke out a cause of action, plaintiff's evidence falls far short of exhibiting any excuse for his failure to see the parked truck. When questioned about the accident, plaintiff stated as follows:
"Well, I was going to Bellvue. Was driving between forty and forty-five miles an hour, and I came upon a truck on the highway about a half mile from the city limits. I came upon a stopped truck in the *Page 1044 road, and I threw my brakes on because this truck was sitting on the road without any flares, no signal, or no warning of no kind, and I was up on it when I saw it. So I started to swerve out to miss the truck, but there were some cars approaching, so instead of having a head-in collision, I had to hit the truck, and after the accident there was Mrs. Antoon and Mrs. Henry Monteilh — was coming in the opposite direction." (Emphasis mine.)
Thus, it is manifest that plaintiff does not attempt to explain why he was unable to see the parked truck — he simply makes the bald statement that he did not see it. He does say that, after the accident, a car containing two ladies was coming in the opposite direction but at no time during his examination did he testify that he was blinded by the headlights of that or any other car;1 that the night was foggy or that there was any other reason why he could not, by exercising the ordinary prudence required of every motorist, see the parked truck in time to avoid striking it.
Indeed, the facts of the case reveal that plaintiff was driving on a perfectly straight and level road of usual dimensions with gravel and dirt shoulders on each side some eight or nine feet wide — and he testified that his headlights were burning properly. Under such conditions, in the absence of a showing that he was blinded by the headlights of cars coming from the opposite *Page 1045 direction, it is patent that he is guilty of negligence in failing to see the parked truck and stop his car, which was travelling at 45 miles per hour, short of a collision. That his negligence had causal connection with, and was a contributing factor to, the accident can hardly be gainsaid.
I respectfully dissent.
1 The majority opinion declares: "The plaintiff's visibility was affected by the oncoming traffic with lights burning, approaching from the opposite direction * * *." I fail to find any evidence in the record to support this statement.