CONCURRING OPINION
In the case of Campbell vs. Haas, decided by this Court, reported in 4 La. App. 435, it was shown that Miss Maginly who was driving her car northward towards Opelousas had crossed the road from the right to the left side where she had parked the car near the ditch, temporarily, for repairs. It appeared that the lights on her car were shining brightly. Mr. Haas, the defendant in the case, it was shown, was driving southward irorn cpeiouods ms right-hand side of the road wherq me Maginly car nan oeen panted, as oeiore stateu. Me ran his auto into the Maginly car, lulling Miss Campbell ror whicn ne was held liable in damages. The record showed that derendant, alter he saw mat me Maginly car had been parked on his side of the road, could have safely passed it on his left-hand side and could have thus avoided the- accident. He explained that he did not swerve to his left because he thought another car was coming on his left side from behind the Maginly auto. As it .appeared, however, that no car was coming from that direction and that there was nothing that could have conveyed such an impression, it was held that he was at fault for not negotiating the Maginly car by swerving to his left where he had ample room to pass.
Under those circumstances the majority members of the Court found that he had not met the requirements of the situation by driving on the side of the ditch where the Maginly car was parked, hitting it, which resulted in the killing of Miss Campbell who was standing at the time behind the Maginly car.
In the instant case, the minor, Melvin Lirette, who inflicted the injury, says that after he realized that the Villavasso car was stopped or parked on his side of the road, that he could have passed to the other side of that car as “there was plenty of room” and which statement is sustained by the evidence. He a,dmits that he would have avoided the collision if he had swerved to his left after he had realized that the car was parked, but that he “took the ditch” which the evidence shows, resulted in the injury of plaintiff who was standing on the bridge that spanned the ditch.
*494In Tyer vs. Gulf, C. & S. F. Ry. Co., 143 La. 178, 78 So. 438, the Court said that in order to enforce the doctrine of the “last clear chance,” “it must appear that plaintiff has clearly shown that defendant after seeing the danger could by the exercise of ordinary care have avoided the injury, or, if defendant did not see the danger * * * he might by the exercise of ordinary care have seen the danger in time to avoid the injury.”
Here, it does not only clearly appear that defendant had had full opportunity to see the danger in time to avoid the collision, but that he actually saw the danger in time, and admitted that he could have avoided the accident if he had passed to his left where he had ample room on that side of the roadway. There is not the slightest proof or intimation in the record, to the effect that another car was coming in the direction of defendant from that side of the road, or that he was laboring under such an impression, when he deliberately plunged his car in the ditch, and struck the Villavasso car, at the same time by running against the bridge on which plaintiff was standing, inflicting the damage complained of.
If at the time another car had been coming towards Melvin Lirette on his left side or that anything existed which could have created such an impression in his mind, in such an event, an emergency would have arisen which would have exonerated him or rather his father from responsibility, because under such circumstances, a collision with the Villavasso car or the car coming would have been inevitable. There was, however, no car coming towards Lirette. The proof is that his way was clear to his left for an easy passage on the side of the Villavasso car, and that according to his own evidence the collision would not have occurred had he followed that course which was open to him. Under the existing circumstances .■e was nothing that demanded that he should imperil his own life, as he had an open way to his left by plunging to his right into that ditch, and which could only result, and as it actually resulted, in a collision with the Villavasso car. It can not be said that in thus driving into the ditch at the almost .certain peril of his own life, and with the practical inevitable certainty of a collision with the Villavasso car, that Lirette exercised ordinary care. The exercise of ordinary care demanded that he should have swerved to his left and thus have avoided the (possibility of a collision with the other car or any accident. He was required under the humanitarian doctrine of the “last clear chance” in the exercise of ordinary care to have negotiated the other ear by passing to its left as before stated.
The driver of defendant’s car said in his testimony he thought he was compelled under the law of the road to swerve his car to his right into the ditch. In this respect he was. mistaken “as the driver of a car is not negligent in driving to the left of the road in trying to avoid an accident.” Smith vs. Interurban Trans. Co., 5 La. App. 704; Williams vs. Garcia, 2 La. App. 56.
If the accident had occurred during the daytime, Lirette, upon realizing the danger ahead of him, would unquestionably, under the rule of the “last clear chance” have been required to pass the Villavasso car by veering to his left side. The acci-1-uit, it is true, happened at night, but as he had realized the existence of the impending danger in time, the same reason--g applied, and required him to pass to 's left and thus avoid the collision; hold*495ing otherwise would establish the rule that the driver under no circumstances should be permitted to swerve to his left whatsoever might be the consequences, and which would be destructive of the doctrine of the “last clear chance” in cases of this character. Lirette, it seems, was .prompted by an honest impulse in driving his car on his right side into the ditch and against the bridge upon which plaintiff was standing next to the Villavasso car, thus inflicting the damage of which plaintiff complains. If a moral issue only was involved the defendant would be entitled to exoneration, but as it involves the enforcement of the “last clear chance” rule, it must bo held that Lirette failed to exercise the ordinary care which devolved upon him under the circumstances.
The proof shows that the Villavasso car was parked on the wrong side of the road. It also appears that Villavasso was in the car with his wife and daughter at the time of the collision. Villavasso was therefore guilty of contributory negligence which continued to the happening of the accident, was also at fault, and would have had no right of action against defendant. Canal Steel Wks., Inc., vs. City of N. O., 9 La. App. 575, 121 So. 773; Blackburn vs. L. R. & N. Co., 144 La. 520, 80 So. 708; Cowden vs. Shreveport Belt Ry. Co., 106 La. 236, 30 So. 747; McClanahan vs. Vicksburg, S. & P. Ry. Co., 111 La. 781, 35 So. 902; Wolf vs. N. O. Ry. & L. Co., 133 La. 891, 63 So. 392.
There is nothing to show that plaintiff, a third party, contributed in any way to the accident. The proof is that she was standing on a bridge spanning a ditch in front of her home when she was run into by defendant’s car. She had not exposed herself to danger, and had a perfect right to be where she was standing at the time.
In Thompson on Negligence, Vol. 1, section 75, the rule governing the right of third persons in such cases is well stated, as follows:
“If the concurrent or successive negligence of two persons combined together, results in an injury to a third person, he may recover damages of either or both, and neither can interpose the defense that the other contributed to the injury.”
This rule was recognized in a very able, exhaustive and interesting opinion by Mr. Justice Thompson, in the case of Appalachean Corporation, Inc., vs. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539. It is unnecessary for us to reproduce the reasonings of the court in that case, in which it is distinctly held on the authority of many citations that the third person thus injured may sue either of the wrongdoers or both at his option, and may recover damages against the one who is only technically a joint wrongdoer, leaving to him the right to recoup himself against the wrongdoer primarily responsible for the accident.
I find that Lirette failed to exercise the ordinary care of a prudent man under the attending circumstances and was therefore negligent or at fault.
Whether primarily or secondarily responsible plaintiff had the right to recover against defendant.
I therefore concur in the finding, holding him liable in damages and in the amount decreed.