DISSENTING OPINION. Even though it be conceded that Talant, the driver of the lumber truck which struck and killed Wilkie, was negligent in not having his truck under such control as to avoid the accident, and that Wilkie was guilty of negligence that contributed to his being struck and killed by the lumber truck at a time when he was attempting in an emergency to flag it and avert the impending collision between the said oncoming lumber truck and the two trucks of the defendant West Construction Company which had blocked the highway to such an extent as to prevent the lumber truck from passing with safety, it is also true in my opinion that the Construction Company was likewise negligent under the undisputed facts of this case.
Both Talant and his companion on the lumber truck testified that except for the fact that the pick-up truck was parked at the end of the bridge and partly on the paved highway along an embankment, where it had been left by the foreman Darter without its lights burning and while it was drizzling rain and foggy, and dark enough to require the use of lights by the lumber truck and the other truck of the Construction Company referred to as the Wilkie truck, they would have been able to have passed without striking the Wilkie truck. These two occupants of the lumber truck were the only eye-witnesses *Page 244 to the collision, and they are corroborated by the physical facts in saying that there was not sufficient space between the pick-up truck and the Wilkie truck for the lumber truck to pass without striking one or both of these trucks with the lumber truck, the latter being eight feet in width and having collided with the other two trucks at the same instant and in such manner as to strike the fender of the pick-up truck and badly damage the Wilkie truck from the left front wheel forward, the said Wilkie truck being parked crossways on the pavement at right angles with the pick-up, as required to be done by the Construction Company to enable its employee Wilkie to unload the rock by dumping the same down the embankment. And, most assuredly, it was inexcusable negligence for the construction foreman Darter to have left his pick-up at the place in question when he necessarily knew that presently it would become the duty of Wilkie to place his rock truck, fourteen feet in length, at right angles therewith in order to unload the same, and for him to then leave it there where it served to create a veritable deathtrap against which Wilkie was making a desperate effort to warn the approaching lumber truck when he lost his life.
But it said that Wilkie should have put out flares. However, since the occupants of the lumber truck, as found by the chancellor, saw the lights of the Wilkie truck before it ever parked across the highway and while it was approaching the scene from the direction in which the lumber truck was traveling, it would appear that the failure of the latter to stop in time to avoid the collision was due to the fact that the Construction Company foreman, as driver of the pick-up truck, had not put on his lights or otherwise given timely warning of its presence at the scene and of its location with reference to the Wilkie truck. It would further appear that Wilkie was only required to make known the presence of his truck, the lights of which the driver of the lumber truck saw in due time to have slowed down; and that therefore the *Page 245 failure of Wilkie to put out flares for the protection of his truck was not the proximate cause of the accident.
And if it be said that Wilkie's death was due to his going onto the bridge to flag the lumber truck, the answer is that the act of Darter in leaving his pick-up truck where it was created the necessity for Wilkie doing so and he was complying with the doctrine of "the last clear chance" in trying to save the lives perhaps of the occupants of the oncoming truck in the impending crisis, a duty that he owed under the law on behalf of his employer.
Moreover, Darter could have parked the pick-up truck in a similar position at any place on the embankment within a distance of 3,000 yards from the bridge in either direction, and so that it would not have been directly opposite where he knew the rock trucks would presently be required to park at right angles therewith. The Construction Company should have promulgated a rule that would have so required it in the interest of the safety of the rock haulers, and should have seen to it that the rule was carried out. Albert v. Doullut Ewin, Inc., et al., 180 Miss. 626,178 So. 312. The Construction Company failed to furnish its servant a reasonably safe place to do his work, and the negligence of its foreman in my opinion contributed to the dangerous situation which caused this unfortunate tragedy. The president of the company, who had left the scene a few minutes prior to the accident, should have reasonably anticipated the danger that Wilkie would encounter when he arrived with his load of rock, and also should have required the putting out of "Men at Work" and "Slow" signs, and other danger signals, under all the circumstances, where so many men were working at the abutments of this bridge on the occasion in question. I think that the wife and child of the deceased were entitled to a decree against the Construction Company as well as against the lumber truck operators. *Page 246