(dissenting).
I cannot subscribe to the majority holding that Bertinot had the “last clear chance” to avoid the disaster which occurred. In the majority opinion it is stated that “because of his heedlessness during the dangerous pumping operation, the driver failed to use a clear chance to avert the disastrous consequences.” However, this heedlessness constituted, as we originally held, his initial negligence. (This holding is approved in the majority opinion.) To this extent, the majority has misapplied the doctrine of last clear chance.
The doctrine is appropriate and places a duty on the defendant to act when, as stated in Williams v. City of Baton Rouge, 252 La. 770, 214 So.2d 138, “ * * * a plaintiff negligently puts himself in a place of danger and his negligence and danger are actually discovered by defendant * * The Court succintly pointed out in the Williams decision that “In the application of this doctrine, it is pertinent. and material to ascertain whether the defendant could, after discovering plaintiffs peril, have averted the accident by the exercise of due diligence.” (All emphasis added.)
As I view the evidence in the instant case, when Bertinot discovered the peril (brought about by the combination of his and plaintiff’s negligence), the danger to his own life was imminent. The record shows that, to Bertinot’s knowledge, accidents of this nature have occurred in the past, and that at least one resulted in the truck driver’s death. Consequently, when he observed the gasoline running toward the truck, and the engine failed to respond to his turning off *1099the ignition, he took the action, which the average ordinarily prudent person would take — he got away as fast as he could. As it was, he was only half way across the street when the truck burst into flames. True, he did not think to use the emergency shutoff. However, since he was acting under the sudden emergency presented, he should not be held accountable in view of the circumstances for being primarily concerned about his own safety. Besides, there is nothing in the record which shows that, at the time he left the vehicle, the use of the emergency shutoff would have been effective.
I cannot conclude therefore that, after discovering the danger, Bertinot had a last clear chance to avert the accident.
For the reasons stated herein and in our original opinion, I respectfully dissent