(dissenting).
Under the court’s charge the test to be applied by the jury in determining *429negligence on the part of the truck driver was ordinary care with the burden on the plaintiff, while the highest degree of care was required of the school bus driver, with the burden on his employer to prove his freedom from fault. That is not even handed justice. Each vehicle had equal standing on the highway, the duties of the drivers were mutual and reciprocal, and each should be held to the same standard of care and the same burden of proof.
The real contest on this trial was not between the plaintiffs and the two defendants. No one ascribed the slightest fault to the three seventeen year old youths killed in this tragic collision, and there was never any doubt that their parents were entitled to judgments against one or both defendants. The trial was a contest between the two defendants each struggling to prove itself free from fault and to place the entire blame on the other. Under the court’s charge it does not seem to me that that contest was fairly conducted, nor that we can assume that the result reached was just and right.
Nor do I think that the application of such unequal standards was required by Louisiana law as announced in the Mire case, 62 So.2d 541, 544. That case did not involve the duty of a carrier which ceases when the journey ends and the passenger has alighted in a safe place. See Stewart v. New Orleans Public Service, 4 La.App. 543; 13 C.J.S., Carriers, § 764, p. 1449. Instead it involved the additional duty on the school bus driver to a seven year old child after he had alighted from the bus to help the child avoid being hurt by other vehicles. In that respect the Louisiana Supreme Court said that the Tennessee Cartwright case, (Cartwright v. Graves), 182 Tenn. 114, 184 S.W.2d 373, had “correctly interpreted the school bus driver’s duty”. The Tennessee Cartwright case likewise involved the duty to a small child, six years old in that case, after he had alighted from the bus. It said nothing about the bus operator being a common carrier.
However, if we consider that the school bus operator is held to the same standard of care as a common carrier, cf. Annotation, 160 A.L.R. 22, I would still think that when moving vehicles collide on the highway, whether or not one of them is a carrier, at least the same burden of proof should apply to both. See Weddle v. Phelan, La.App., 177 So. 407, 410; McGinn v. New Orleans Ry. & Light Co., 118 La. 811, 43 So. 450, 13 L.R.A..N.S., 601; Prosser on Torts, 2nd ed. pp. 206-208; 13 C.J.S. Carriers, § 764, p. 1457; Compare Dawson v. Toye Bros. Yellow Cab Co., 15 La.App. 326, 131 So. 716; Thibodeaux v. Star Checker Cab Co., La.App., 143 So. 101.
If that position is sound, then under our decision in American Motorists Ins. Co. v. Napoli, 5 Cir., 166 F.2d 24; cf Winford v. Bullock, 210 La. 301, 26 So.2d 822, 824, the judgments against both defendants should be reversed and the causes remanded in their entirety.
I therefore respectfully dissent.