dissenting:
I think the judgment appealed from should be affirmed. According to Messrs. Motty and Broussard, the first named being the driver of defendants’ automobile, and Broussard, his companion who was sitting by his Side, Mr. Morgan, the deceased was walking on the right hand side of the highway going north towards Crowley. Defendant’s automobile was also going north on the highway in the same direction, and Motty saw Mr. Morgan a hundred yards or more ahead, but defendant’s automobile just before overtaking him met another automobile coming south. The line on which this southbound car was running in the road, made it necessary for Motty to stay closer to the right hand side of the road and closer to the line in which Mr. Morgan was walking than likely would have been done if it had not been for the course taken by the car coming south which passed Mr. Morgan just as defendant’s car came up close behind him. The line on which defendant’s automobile was running, due to the southbound car, would have passed two or three feet to the left of Mr. Morgan, but just after the southbound car had passed him, and with the automobile of defendant close in his rear, Mr. Morgan suddenly and unexpectedly to Motty, changed his course and without looking back, left the side of the road and started running diagonally ahead in the road, placing himself almost immediately in front of defend*81ant’s automobile, and so close, that due to tbe speed at which it was running, it was impossible, so Motty says, to avoid striking him.
The law, Act 232 of 1926, Section 15, does not in terms require the driver of an automobile to slow down for the purpose of passing close by a pedestrian in the road, but in my opinion it is contemplated that for the purpose of passing close to a pedestrian should slow down and swerve away from him, so that in case he suddenly and unexpectedly, and without looking back, steps a few feet from the side of the road into the highway, the driver can avert striking him. A proper human regard for the pedestrian, requires that this be done.
If the driver of the automobile knows that the pedestrian has seen him 'and knows that he is coming up behind, he then has the right to act on the supposition that the pedestrian will keep straight ahead and not step out in the line of contact, but when the driver, as in this case, has observed that the pedestrian walking ahead has not looked back, and therefore knows that he has not seen him and may not have heard him, then the last clear chance to save life and responsibility for not doing it rests on the driver of the automobile. And when his line of direction is within two or three feet of the pedestrian, then the duty is on him to slow down timely and swerve out in the road further to the left in time to avert just what happened in this case. Motty says, and he is corroborated by Broussard, that he did apply his brakes and swerved to the left the moment he saw Mr. Morgan’s sudden movement. But at the time he acted, it was of no more effect than if he had not made any effort at all. According to Motty and Broussard the last clear chance was in Motty’s hands; he could have saved the situation by timely slowing down and bearing further to the left, but he kept straight ahead on the line on which he was running and kept up his speed until it was too late. This left Mr. Morgan’s life dependent on the chance that he would keep straight ahead and would not suddenly leave the side of the road and turn running diagonally ahead in the road without first looking behind him.
Burvant vs. Wolfe, 126 La. 788, 52 South. 1025, is a case in which a last clear chance responsibility existed at a place where the danger of running over pedestrians was apparent to the driver of an automobile, and in which the observations of the Court seem to me to be pertinent to the one in hand. It is not negligence in all jurisdictions to turn out into a road without previously looking behind as defendant’s witnesses, Messrs. Motty and Broussard, say he did. See Ruling Case Law, Vol. 2, p. 1186, Section 21, and Vol. 13, p. 293, Section 243. But suppose it was a negligent act, that did not absolve defendant from the duty incumbent on it, to take into account and provide for the known danger of passing within two or three feet of a pedestrian walking ahead on a road, and going at a speed so fast that the car could not be checked after it had been observed that the pedestrian had not looked back. The margin was too close. The striking is not excusable by showing that it could not have been averted after the danger was seen.
“A pedestrian in a highway is under no legal duty to look back or watch behind, to see whether or not he is in danger of being struck or run down by any vehicle approaching from the rear.” Hatzakorian vs. Rueker-Fuller Desk Co., 41 A. L. R., 1027.
The above is part of the syllabus and opinion in a California case in which a pedestrian walking on a highway in the night time without having looked back, was struck by an automobile and killed. *82If, as held in that case, a pedestrian is not bound to look behind before he turns out into a highway in the night time, then there is less reason for doing so in the day time as in the present case.
For the foregoing reasons, I hereby dissent.