dissenting from refusal to grant a rehearing.
In dissenting from the refusal to grant a rehearing I depart from an established custom, but I do so because I find that a point raised by defendant and most exhaustively and conclusively presented in the brief was. not discussed by me in my dissenting opinion and was scarcely even referred to in the majority opinion.
Defendant contends that, apart from the imputability of the negligence of the chauffeur to the superintendent, Hogan, he, Hogan, was guilty of independent negligence on his own part, and that this negligence should bar his recovery.
That a passenger in an automobile driven by another may be guilty of negligence independent of any fault that may be chargeable to the driver has been intimated often and held directly on several occasions, and we have so decided very recently in the matter of Williams v. Lenfant, 15 La. App. 515, 131 So. 857, No.13,506 of our docket, decided by us on January 19, 1931. But so greatly does the argument of counsel for defendant impress me that I shall again refer to the jurisprudence on which the contention is based and shall attempt toi show that, under the facts presented by the record, that jurisprudence is applicable here. That our courts have decided that the negligence of the driver is not chargeable to an invited guest has often been decided and need not be discussed, but it has never been decided that such a guest cannot be guilty of contributory negligence on his own part so as to bar recovery, but, on the contrary, our Supreme Court and this court have, on many occasions, intimated that he may be guilty of such negligence and that such negligence may defeat his action. *644In Churchill v. Texas & Pacific Ry. Co., 151 La. 726, 92 So. 314, 315, the Supreme Court said:
“Granting that Hayslip, the driver of the automobile, was guilty of negligence in approaching the crossing without slackening his speed, and attempting to beat the train across, should this defeat plaintiff’s right to recover for the death of his father, who was the guest of Hayslip? Under the jurisprudence of this court, it would not, unless the circumstances were such that the deceased could be charged with negligence of his own. Daull v. New Orleans Railway & Light Co., 147 La. 1012, 86 So. 477, and authorities therein cited. Churchill, not having charge of the operation of the machine, was not required to keep a lookout for danger, but could rely upon the discharge of that duty by the driver, who was responsible for its operation; and it not appearing that the deceased saw the approaching train until almost the instant of the collision, and, having shouted the warning as soon as it was discovered, we do not find that he was guilty of negligence.”
In the Churchill case plaintiff was an invited guest passenger in a car driven by his son. In Leopold v. Texas & Pacific Railway Co., 144 La. 1000, 81 So. 602-603, the plaintiff was a guest passenger and his son was the driver. A railroad crossing was approached at a speed of about fifteen miles an hour, which was reduced to about half of that. The car struck a soft spot in the highway and the engine stalled. While the son was cranking it, as it had no starter, plaintiff testified that he looked and saw no train, but that he mentioned to his son that a train was about due and that they started to cross the track; and “that he never looked any inore for the approach of a train, for the reason that his attention was attracted to his son’s manipulation of the car, as the latter had been away from home several months, and he was afraid the son would not be* able to operate it readily.” The car went upon the track and was struck by the train. The Supreme Court found that the railroad company was guilty of negligence in that the crossing was in bad condition and in that it had permitted obstructions to grow upon the right of way, and in this regard the court said:
“These conditions placed upon both parties the duty of exercising extreme care at this crossing; and, inasmuch as Dr. Leopold admits that he never looked any more after stopping until the train was almost upon him, we 'must conclude that he, too, was guilty of negligence.”
And later the court said:
“Some effort is made to excuse his failure to look again on account of the condition of the crossing, but the doctor says it was his fear that his son did not remember fully how to operate the car, on account of his absence. Be that as it may, he admits that he knew it was about train time, having mentioned it to his son, and the duty to look out for the train was far more important than the matter mentioned. He was not driving himself, so that he was compelled to have his attention on the car.”
We find the doctrine under discussion very well stated in 29 Cyc. 561, as follows:
“Notwithstanding the fact that the negligence of the driver will not be imputed to a passenger, yet it is necessary that the passenger himself 'must exercise ordinary care. And the rule denying the imputation of the negligence of the driver to the passenger has no application where such passenger has an opportunity to discover the danger, it being his duty in such case to discover and avoid it. While the passenger is not required to exercise the same watchfulness as the driver, he cannot - rely impllcity on the care of the driver when in a position to see. No recovery can be had where the passenger ac*645quiesced or participated in the negligent acts of the driver, or had knowledge of the danger and accepts the risk to be encountered.”
I Relieve that the Leopold decision is ample authority for the view that plaintiff in the present case cannot recover because in that case Dr. Leopold was fully cognizant of the danger. He was not driving the automobile; therefore 'his attention was not in any way diverted and he was in better position to see. He realized that some duty rested upon him, for he did look, though he says, he did not continue to do so. In the present case Hogan was fully familiar -with that crossing. If it was dangerous by reason of obstructions to the view, or because of the peculiar curve made by the street railway tracks, no one knew, of these conditions better than did he. In fact he admits that he knew of all these things and goes so far as to say that he, because of his location on the right side of the ear, could see better 'than the chauffeur. On page 90 of his testimony he says: “I could see the car. The chauffeur could not see the car.” That he had an unobstructed view is evidenced by his own testimony, as it appears on page 77:
“Q. In what seat of the automobile were you?
“A. I was sitting on the back seat, on the right hand side of the machine looking forward.
“Q. In that seat, could you see and hear freely and unobstructedly?
“A. Absolutely.”
That his attention was fixed on the car appears from the evidence given by him as I find it in the record on page 78:
’ “A. * * * I could see the street car all right, but I wasn’t ■ paying no attention to the track. I was watching that car.”
■ That' he knew they were approaching the crossing, even before he saw the street car and that he assumed the attitude that it was not his business to have anything to do with the driving of the car appears on page 88 of the testimony:
“Q. But if you know that there is a. railroad track there, and had passed over it several times, you don’t need a sign to tell you it is there, do you?
“A. Well, personally, I don’t suppose I would, but I am not here to vouch for anybody.” .
Again, that he realized that possibly the driver could not see, but that he could, I find in his- testimony on page 92:
“A. Anyone in the back of the car can see it, or on the right hand side of the car, but I am talking about the driver now. I seen that car when it was thirty or forty feet away, between thirty and forty feet away from me, but I had no control over the street car, the street car nor the automobile.” , ....
It appears, then, that Hogan was familiar with the crossing; knew long before the car got there that the tracks must be crossed; realized that it was difficult to see a street car approaching; must have realized that the automobile in which he was, was going too fast and was driven recklessly, as we so held in Lehon v. N. O. Public Service, Inc., 10 La. App. 715, 123 So. 172, and yet made no protest and uttered no sound of warning. '
If such conduct is not negligence, then I am not familar with the meaning of the word “negligence” and I do not know what the* Supreme Court meant when, in the Churchill case, supra, it intimated that a guest passenger might be refused a recovery if “the circumstances were such that the deceased could be charged with negligence of his own.”
*646Bearing in mind that Hogan, the plaintiff, stated that not only could he see as well as the chauffeur, but that, in fact, he could see better than' could the chauffeur, and that he was unusually familiar with the crossing, having gone over it many times, I cannot see how it can be held that he was not himself negligent independently of the negligence chargeable to the chauffeur. In Toups. v. Morgan’s La. & Tex. R. R. & S. S. Co., 4 La. App. 136, in which both a husband and wife sued for damages sustained when the automobile in which they were riding was struck by a train of defendant company, we held that neither could recover because “each of them were recklessly disregardful of the approaching train, and that their negligence in this respect precludes recovery as to either of them.” In McQuiston v. Shreveport Rys. Co., 12 La. App. 277, 124 So. 706-711, recovery was denied to McQuiston, a guest passenger in. an automobile driven by another person, because the court felt that the guest passenger himself was guilty of negligence in not taking independent precautions on his own part. The court said that the accident was caused by the “joint negligence of Langford, the driver of the truck on which plaintiff was riding, and plaintiff himself.”
In Roberts v. Eason, 6 La. App. 703, recovery was denied where the injured party was a guest passenger in an automobile driven by another because of the fact that t.he injured party had no opportunity to know of the danger and made no protest. That the court was of the .opinion that there was a duty in Mrs. Roberts, the passenger in the car, to keep a lookout’ on her own account and to insist that proper care be exercised in the operation of -the automobile, is shown by the following:
“But considering the record admissions of both Mr. and Mrs. Roberts by their own testimony herein Quoted, we are constrained to conclude that each of them was recklessly disregardful of their own safety in traveling so rapidly and trailing the car ahead of them so closely and not maintaining a better lookout and.that their negligence in these respects precludes recovery by either of them.”
Throughout the testimony of Hogan in ■the case at bar runs his admissions that he knew that they were approaching the-crossing, that he knew that it was dangerous, that he knew that he could see better than the chauffeur, and that he knew that the automobile in which he was riding was going very fast.
In Berry on Automobiles, Sixth Edition, vol. 1, p. 532, sec. 655, is found the following:
“A guest or passenger in an automobile should keep a reasonable lookout for danger, if necessary; the degree of care which he is required to exercise depending upon all the attendant circumstances,”
In the casé at bar the attendant circumstances were as I have already stated; that Hogan had full knowledge of the dangerous crossing and that he admitted that he knew he could see better than could the chauffeur.
Also, in Berry on Automobiles, Sixth Edition, vol. 1, on page 631, is found a discussion of whether or not a guest passenger may read a newspaper, or otherwise allow himself to become oblivious of dangers, The author states that under certain conditions a guest passenger- may fulfill his full duty and yet take only very slight precautions on his own part, but that, even under such circumstances, “there arise in the- course of the drive conditions which clearly fix on the guest the duty to give warning. Some of these circumstances may be clear and obvious, as, for illustration, an automobile may be so operated as *647to attract the, attention of á guest even though he he otherwise occupied, as a car driven recklessly, carelessly, or with excessive speed, driving on the wrong side of the road, etc.” Here, again, the condition's which fix such duty on the guest are found to exist in this case. • It should he remembered that Hogan was looking out; that thus, he could see that the automobile in front of him had stopped before crossing the street car tracks, and yet, in spite of Hogan’s knowledge that the street car tracks created an extreme hazard, he permitted the driver of the automobile in which he was riding to dash at an excessive speed around the stopped automobile and directly into the path of the street car. He uttered no word of warning.
For these reasons. I am of the opinion ■that, if the doctrine announced ih the many cases to which I have referred is correct, and if a guest passenger is under Some obligation to take precautions for his own safety and to warn of a danger which ho knows is approaching, Hogan’s right is defeated by his own negligence.
I believe that a rehearing should be granted because the point which I have jtist discussed was not adequately considered and I believe that ultimately the judgment based on the verdict of the jury should be affirmed and that plaintiff’s suit should be dismissed for the following reasons :
First, because defendant’s employes were guilty of no negligence.
Second, because the negligence of the Chauffeur should be imputed to the superintendent riding in the car with him; and,
Third, because' the superintendent, plaintiff here, was guilty of independent negligence in failing to warn the chauffeur and caution him at a place which he, the superintendent, knew was extremely dangerous.