(dissenting).
Both the Court of Appeal and the majority have found the plaintiff Leake to be negligent. While the Court of Appeal failed to find that the evidence preponderated as to the defendants’ negligence, the majority of this court has determined otherwise. I am willing to accept the majority’s determination of the causes in fact, the risks involved, and the duties owed. Under these determinations as assigned by the majority, since this court applies the doctrine of last clear chance I must conclude that the plaintiffs are entitled to recover.
The majority holds:
“In our opinion Leake was under no greater duty to receive the gasoline safely than Prudhomme was to deliver it safely. * * *
“In view of the highly dangerous nature of the commodity involved, Bertinot [Prudhomme’s employee], knowing that none of Leake’s employees was present, had the obligation of keeping the proper lookout to be sure that the delivery process was proceeding smoothly and safely. * * *”
“By the slightest attention on his part, Bertinot, even without having gotten out of the truck’s cab, could have observed the gasoline overflow when it commenced, instead of later when it was almost too late to take precautions to avoid the disaster. * * *
“ * * * Nevertheless, under the facts above shown, we are compelled to the conclusion that had he [Bertinot] observed the escaping gas when he should have, his peril would not then have been so imminent, and he would have had sufficient time to exercise the proper safety precautions.” (Emphasis mine.)
The court’s determination that Bertinot was “highly negligent” under the above conclusions requires the application of the last clear chance doctrine and allows recovery to plaintiffs. I respectfully dissent.