(dissenting). I agree with the majority of the court that Motor Freight Lines, Inc., was negligent and at fault.
I dissent from the holding that the plaintiff, Hanno, was not also negligent, and that his negligence, acting with that of the defendant, did not bring about the collision. The road was. 27 feet wide, straight and level, and Hanno could not have helped seeing defendant’s truck, under the headlights of his own automobile, in time to have stopped before striking it if he had been driving at a moderate speed and looking ahead in the direction he was going.
Act No. 296 of 1928, sec. 5, provides that:
“Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at such speed as to endanger the life, limb or property of any person.”
Section 50 requires .that every vehicle, after sunset and before sunrise, and at any other time when there is not sufficient light to render clearly discernible any person on the highway a distance of 200 feet ahead, shall be equipped with lighted front and rear lamps or reflectors.
Section 52:
“The head lamps of motor vehiclesi shall be so constructed, arranged and adjusted’ that * * *, they will at all times mentioned in Section 50 and under normal atmospheric conditions and on a level road produce a driving light sufficient to render clearly discernible a person two hundred feet ahead, but shall not project a glaring or dazzling light to persons in front of such head lamp.”
Plaintiff was driving alone, going east in the same direction in which the truck was headed. He testified that his automobile had good headlights. It must be assumed from what he says that his headlights had the lighting power required by law. He saw the truck in the road ahead of him, and says:
“If I had had time to have done it, I could have gone around on the right-hand side of the road and passed the truck and trailer; they were almost in the center of the road, I call it, the truck was.”
He says more than once that there was room for him to have passed on the left-*68hand side of the truck; if he had had time, he would have tried it, etc. He was asked:
“Q. Tell us what happened?
“A. I was driving along, drivjng east. As I was going along I saw a car coming that had very bright lights and I moved over to the left hand side of the road and as this car got just on me, I couldn’t see very well past it and there was right on this side, a large truck with no lights at all visible on it. I couldn’t see it and there was nothing to do, but crash into it. I was on the truck oefore I realized it was there. I had but a short time to think also the truck was up rather high and the reason it tore up my car so bad is I just ran up underneath it.”
He later says:
“Q. Do you know with reference to the highway, how this truck and trailer were parked there?
“A. Well they were parked. If I had 'time to have done it, I could have gone around on the right-hand side of the road and passed the truck and trailer. They were almost in the center of the road 5 call it, the truck was.”
Further on:
“Q.- You know about how fast you were operating your car?
:. ‘‘A. No sir. I wasn’t watching the speedometer. I slowed up for the crossing at Holden, — I must have been going around 35 miles an hour when I ran into it.”
The plaintiff was meeting a car showing bright lights going west. He saw it a half a mile ahead. It came on and was passing the truck just about the time he struck the trailer. He says on this. subject:
“Q. This accident happened before this car ever passed you?
“A. No sir. It just passed me as I hit. As it got along by the side of me, that is' when I noticed the truck. I was right on the truck as the car passed me.
‘‘Q.' In other words the car was right along side of you at the moment of the impapt? ...
“A. No sir. As I noticed the truck the car was along side of me.”
Plaintiff testifies that the on-coming car passed on the right side of the truck, and, as the on-coming car vas going west, it passed on the north side. Asked if this parked truck was in between him and the approaching car, why he could not see the truck, he said:
“I must have been driving about the center of the road. I know I. turned to the left as the glare got in my eyes. As the glare got in my eyes I turned to the left.”
He was then asked, even if he was in the center of the road and looking ahead, why he could not see the parked truck, which was a very large one, and his answer was:
“All I know is, that the glare of the headlights of that car was in my eyes.”
Pressed further, he said:
‘T did see it, but too late.”
“Q. Were you looking ahead?
“A. Yes sir.
”Q. Don’t you know that, if you look and do not see, that it is the same as not looking?
“A. I couldn’t see anything; but the other car coming.
‘‘Q. And the first time you saw this parked truck was just about the moment you hit?
“A. I was pretty close to it when I saw it.”
Supposing plaintiff’s headlights, sufficient to have shown him a person in the road a distance of 200 feet ahead, this bulky stationary object, situated near the center of a level road, 27 feet wide, in between plaintiff’s lights and the lights of the on-coming car, should have been seen by him, if he was driving at a lawful speed and look*69ing ahead, in time to have stopped before getting to it and to have done whatever was necessary upon reaching it in order to have avoided striking it. The highway in question is one upon which automobiles are passing back and forth almost constantly.
Ordinary care requires, a man driving on it at night to expect and be on the lookout ahead for automobiles, motortrucks, and other things which may have stopped in the way- as the result of accident, or otherwise.
The law, Act No. 296 of 1928, secs. 5 and 52 et seq., has for its object to prevent just such accidents, as the one which has given rise to this suit, and to bring about greater safety in the matter of driving on the highways.
To that end the requirement that a party drive at a prudent speed, not greater than is reasonable and proper, having due regard to the traffic, surface, and width of ■the highway and of any other conditions then existing, is mad© a legal duty. It is a legal duty to have his automobile equipped with headlights of lighting power to enable him to see a person 200 feet ahead. And his speed must be such, section 5, that he can within this distance turn to one side, slow down, stop, or do whatever the exigency of the situation may require.
Since this enactment, it is useless for a party to say that he was blinded by glaring lights of an on-coming car when he saw the truck in the road, in between him and the on-coming car, in time to have stopped. The law regards a party as having .seen what he could not help seeing. Kelly v. Schmidt & Zeigler, 142 La. 91, 76 So. 250.
The rule is that a motorist on a highway at night must keep his car under such control that he can stop and avoid an obstruction within the distance that bis headlights illuminate the way. Parlongue v. Leon, 6 La. App. 18; Pollet v. Robinson Lumber Co., 10 La. App. 760, 123 So. 155; Newsom v. I. C. R. R., 11 La. App. 50, 122 So. 874; Lipscomb v. Standard Highway Co., 11 La. App. 509, 124 So. 156; Sexton v. Stiles, 15 La. App. 148, 130 So. 821; Jacobs v. Jacobs, 141 La. 273, 74 So. 992, L. R. A. 1917F, 253; Blackburn v. R. R. Co., 144 La. 520, 80 So. 708; Woodley & Collins v. Schusters’ Wholesale Produce Co., 170 La. 527, 128 So. 469.
Some of the above decisions were rendered before, others since, the enactment mentioned. In Jacobs v. Jacobs, the court held that there are exceptional situations in which the rule does not apply.
In Futch v. Addison, 12 La. App. 535, 126 So. 590, cited in the present opinion, a truck drawing a trailer stopped on the highway late in the evening, the result of' an accident. The trailer was loaded with two saw logs, one of them about 14, the other about 18, feet long. The rear end of one of them projected about 4, the other about 8, feet out beyond the rear of the trailer. The truck was a little to the south side of the middle of the highway, and 25 or 30 feet south of a small bridge which spanned the highway. The ground was built up about 1% to 2 feet on each side of the approach to the bridge, elevating the bridge to that extent above the level of the highway. There were hand rails at each end of the bridge. The elevation of the bridge hand rails- at the end of it, combined with the fact that the bridge was not as wide as the road, served to prevent a party driving south from see*70ing the ends of the logs behind the bridge projecting towards him.
The negligence of the truck driver consisted in going off an,d leaving it there after dark, without a watchman or lights on the truck or logs of any kind.
As Futch came up close to the bridge, going south, with his lights on, another automobile with bright lights came up, going north. The bridge being so narrow, the other fellow waited for Futch to pass first. The waiting car made it necessary for Futch to swerve to the right immediately upon passing the bridge. After crossing the bridge, the ends of the projecting logs were not discernible to him under the lights of the cars until after he was so close that he could not stop before striking them. The danger was one that defendant should have foreseen. The Act No. 296 of 1928 does not protect people who leave dangers in the road, so situated as to be concealed from view under the headlights of cars approaching them from ,one of the directions of the road.
Stafford v. Nelson Bros., 15 La. App. 51, 130 So. pages 234, 236, is also cited in the present opinion. Nelson Bros, had left a large bulky machine to remain during the night on that part of a highway recently paved and re-opened to public traffic without lights on it. The machine was. being used for the purpose of constructing shoulders along side of the recently laid pavement. The machine occupied nearly half of the west side, of the pavement.
The Revised Statutes, sec. 3379 (amendment Act 240 of 1914), prohibits the obstruction of public roads. The alleged negligence of the plaintiff, Stafford, in not seeing the machine and stopping before he struck it was a close question in the. case. The machine was on the side of the road on which Stafford belonged to be driving. As Stafford proceeded south under the headlights of his car, another automobile was. coming north, meeting him, both drawing near the machine which was in between them. Stafford saw the on-coming car when it was 60 or 70 yards distant from him, but whether he had seen the machine in the road ahead of him before then or not the opinion does not say. At any rate, he kept going, without stopping, expecting to pass the on-coming car, which was also about to pass the machine, but the headlights of the car blinded him. He then started to slow down when only about 40 feet from the machine in the road. Not knowing on which side of the road it was, he swung to the right and then to the left, but struck the machine before he could stop.
After considering the facts and circumstances concerning Stafford’s approach, the court concluded that:
“Even if he did not exercise the best judgment considering the situation in which he had been placed by the inexcusable negligence of the defendants, he cannot be held liable for the results of the collision.”
The opinion cites authorities holding that, where an emergency existed in which a plaintiff is not guilty of contributory negligence, he may recover, although he selected a course resulting in injury, when he might have escaped had he acted otherwise.
The opinion in the Stafford case refers to Act No. 232 of 1926, sec. 5. That act contained no provision like that contained in Act No. 296 of 1928, sec. 52.
In the present case, I think the judgment appealed from should be reversed, and the demand of the plaintiff rejected.
I therefore respectfully dissent.