ON APPLICATION FOR REHEARING
MOUTON, J.In this case we are favored by a written - opinion of the trial judge which passes on all the questions of law and fact presented by counsel.
In the course of the opinion, the court took occasion to say as follows:
“Counsel for both sides requested the Court to view the scene of the accident at night, and to test the visibility of a truck load of pipe of identically the same kind and dimensions as that which was in the collision, and this was done. Frankly, before the demonstration, I was of the opinion, notwithstanding the testimony referred to in the preceding paragraph, that the plaintiff should have seen the pipe in time to stop. The demonstration convinced me, however, that because of the poor visibility of the pipe, any ordinary person would likely drive into it as did the plaintiff on the night of the accident.” '
The scene of the accident was not reenacted for our benefit, but, after a most careful study of this record, we are unable to find any error in the conclusion of fact reached below on this, the most vital issue in the case, as expressed in the foregoing quotation.
In our original opinion, we said it was-shown that the trailer and pipes were across Ryan street with the end of the pipes extending into Alvin street, which had placed plaintiff in a perilous position when he attempted to cross Ryan street.
Continuing, we said:
“Plaintiff was therefore confronted with a sudden and unexpected peril when he came in close proximity to this trailer and pipes. There were two hazards which suddenly presented themselves, and which were created by the fault of defendant’s employee. Plaintiff, in order to avoid injury or disaster, had to choose between the two hazards by either applying his. brakes or to turn to his right and attempt to pass between the trailer, pipes., and the corner of Alvin street. * * * If one, under such circumstances, is compelled to choose instantly between two hazards, he will not be guilty of contributory negligence, although the one he selects results in injury.”
Counsel for applicant says:
“We believe we are correct in assuming that the Court did not intend to say that the plaintiff was confronted with two hazards.”
In 45 Cyc. 963 et al., cited in Weinfield v. Yellow Cab Company, Inc., 10 La. App. page 316, 120 So. 420, 422, body of decision, we find the following:
“So also where by the negligence of another, one is compelled to choose instantly between two hazards he will not be guilty of contributory negligence, although the one he selects results in injury and he might have escaped had he chosen the other, or had he done nothing at all.”
The language used in our opinion, on this subject, is almost identical with the words reproduced from the foregoing excerpt. If there be any inaccuracy in the language employed by us, credit for it must be given to the above excerpt from Cyc., almost literally followed in our original opinion. The only difference existing between what we said and what is stated in that excerpt is, that when a party is placed in such a perilous situation by the negligence of another, in the event that *591he has “done nothing at all,” he cannot he held for contributory negligence. In the instant case, plaintiff took a chance by stepping on the brake to stop his auto but without avail. It cannot be- held that he was at fault, and could not have been so held, even if he had “done nothing at all.” If plaintiff made a mistake in stepping on the brake instead of attempting to go around the pipes by Alvin street, and failed to exercise the “best judgment,” under the circumstances, he cannot, as was originally stated by us, be held to have been at fault or negligent.
In this, case the truck and trailer wore connected by pipes 'nine inches in thickness, which, as explained in our original opinion, were brownish in color, and were invisible at .the time of the accident to plaintiff, situated as he was.
Counsel, in discussing this subject, says the statute referred to (Act No. 296, of .1928, sec. 44 (b)), reads as follows:
“Whenever such connection consists of a chain, rope or cable, there shall be displayed upon such connection a red flag or other signal or cloth not less than ■twelve inches both in length and width.”
As the connection in the instant case' did not consist of a chain, rope, or cable, counsel contends that defendant company was not required to have a signal on the pipes. The record shows that defendant had placed a light at the rear of the cab, and counsel argues very strenuously that it streamed along the pipes, which should have been seen by plaintiff in time to avert the accident. We found, as stated in our original opinion, that the light back of the cab fell south or west of the pipes, and which were not visible to plaintiff. In the application for the rehearing, counsel now contends that the'use of the light at .the rear of the cab was not required by the statute.
This argument leads to the conclusion that in this case, if defendant’s cab had been connected with the trailer by only one pipe, however small in size, and although of color, black, no signal or light would have been necessary on that pipe for protection to the traveling public, because not specifically required under the provisions of the statute. One pipe of the color stated between two vehicles at night would be practically invisible under almost all conditions, without a light placed on it. Without such a signal at night, traveling over the streets of a city of the size of Lake Charles, where • there is constant traffic, would be in total disregard of the dictates of common prudence and ordinary care. A party so traveling would be guilty of the grossest negligence.
Although the statute does not specifically provide that a light or signal be used where a pipe or link of such character connects two vehicles, it is demanded by the general rules of law for protection against palpable and inexcusable negligence. Here, it is true, the cab and trailer were linked, not by one pipe, color, black, referred to above merely for illustration, but'were connected by several pipes. They were brownish in color, but were, however, not visible to plaintiff before he ran into them, and in time to avoid the collision. The danger lurked in their invisibility, and, though there were several pipes, a light should have been placed on them or used in such a way that they might have been visible to .those traveling on the streets in autos or similar vehicles. The light being behind the cab afforded no such protection, the defendant was at fault, guilty of gross and inexcusable negligence, for which it was properly held in damages.