concurring:
I reluctantly concur for two reasons: (1) while I find it difficult to vote in favor of the reversal of the trial court, and allow recovery to Gerald Lavergne, a dissent would cause a five-judge re-argument, which I would rather avoid, and (2) for the reason that although I disagree with the case of Rue v. State of Louisiana, Department of Highways, 372 So.2d 1197 (La.1979), we are nevertheless bound by it.
With reference to the future of Rue, I note with particular interest our recent case of Brown et al v. Louisiana Department of Highways et al, 373 So.2d 605 (La.App. 3 Cir. 1979), in which the Louisiana Supreme Court at 376 So.2d 1269, denied a writ of certiorari with two justices voting to grant the writ to “overrule Rue v. State Depart*528ment of Highways, 372 So.2d 1197 (La.1979)”.