ON SUGGESTION OF ERROR. The suggestion of error challenges the statement of the facts in the controlling opinion in four particulars: (1) As to what was said about the order of the State Highway Commission; (2) as to the statement that the pick-up truck could not have been conveniently parked elsewhere; (3) as to the statement that Wilkie had three negro men to assist him; and (4) as to the statements about the flares and the duty of Wilkie to put them out.
As to the particulars under the first two numerals, without going further into them, we will satisfy those objections, for the purposes of the case, by assuming that it was negligence to park the pick-up truck where it was standing at the time of the injury, and as to the other two we will concede that the argument in the suggestion of error that Wilkie did not have time, with or without assistance, to put out the flares is well taken.
But with the latter concession we still have the obvious situation that had Wilkie, when he arrived at the bridge, stopped his truck on his right-hand side, to the rear of the pick-up truck, and left it there while getting ready to put out the flares, the rapidly approaching truck of Talant would have passed without injury and this, as stated, in the extremely short interval while Wilkie was getting ready to put out the flares.
We have concluded, however, in order to place our decision on clear ground, to eliminate all reference to flares, and to bottom affirmance upon the dominant fact which controlled the chancellor as shown by his opinion, and which was set forth, also, in the main opinion by this court, and that is this: The physical facts demonstrate, and the chancellor found, that when Wilkie realized that the heavy truck of Talant coming from the west, at a high rate of speed, was apparently headed for a collision *Page 247 with the truck of Wilkie, then at right angles across a considerable part of the road, Wilkie ran west upon the bridge for some forty to fifty feet and attempted to flag down the approaching truck of Talant, and as he did so was struck and killed by Talant, so that the proximate cause of the injury and death was the gross negligence of Talant, the driver of the lumber truck, in striking Wilkie in the self-exposed position of the latter, forty or fifty feet away from the parked trucks, a situation wherein ultimately the parked pick-up truck had no causal connection with the injury which occurred forty or fifty feet away and further to the west.
The only way in the stated situation in which it could be said that the pick-up truck had any causal connection with the injury and death would be to hold that it was the position of the pick-up truck on the extreme outer edge of the road, rather than the position of Wilkie's truck, which was at right angle across a large part of the road, which impelled Wilkie to run upon the bridge in front of the approaching truck to flag, but to so hold would require resort to an improbable conjecture, and judicial judgments may not be based upon that process.
Suggestion of error overruled.