As the Supreme Court refused to review the opinion in the case Hanno v. Motor Freight Lines, Inc., 17 La. App. 63, 134 So. 317 I at first felt that it was my duty to agree to an affirmance of the opinion and decree of the lower court, which is in harmony with the opinion of this court in the case cited; but I am satisfied the weight of authority in this state, even before the adoption of Act No. 296 of 1928, supports a different conclusion and that the plaintiff Thompson should not recover. The Act No. 21 of 1932 has supplanted the former act, but as the latter act did not take effect until January 1, 1933, the former act governs the present case and the sections 5(a) and (b), 14(a) and (b), 15(a) and (b), 17(a) and (b), 50(a) and (b), and 52(a) and (b) and (c) are particularly applicable and governing. These statutory provisions were intended to bring about greater safety in the use of the highways. The act served to reinforce the court decisions which in most jurisdictions had already held that a party driving an automobile or other motor vehicle on the highways of this state, after dark and during a rain or other abnormal conditions which prevents seeing ahead, except imperfectly and for a short time and distance, must be charged with knowing and understanding that the highways at such a time should be used with the greatest care and that automobiles driven thereon should be operated only at such speed and under such control that they may be stopped within the distance an object can be seen in the road ahead, in time to avoid striking it. Under conditions of the kind stated, danger ahead, due to vehicles that may be moving slow or which may be stopped in the road due to accident and unable to move out of the way of an on-coming and fast running automobile, may be reasonably looked for and apprehended; therefore the driver of the automobile must be required to guard against striking objects in the road, the presence of which may suddenly confront him. Unexpected dangers and hazards which may not be reasonably anticipated are excepted from the rule, but the danger which Thompson encountered as a result of the Bourgeois' automobile having no tail-light was in my opinion a danger that he should have looked for, apprehended, and been prepared for, by having his automobile in hand and moving at such speed that he could have stopped in time to have avoided striking the Bourgeois car.
Plaintiff says:
"Q. When did you first see the car? A. A second before it hit him I was right on him and I made for the left hand side of the road and in doing so I hit his left fender with my right fender. * * *
"Q. You did not see Mr. Bourgeois at ten feet from you? A. No Sir. When I saw him I hit him I tried to pull to the center and in so doing my right fender hit his left fender bottom."
If it is so a party driving on the highway cannot see at all, he should stop and everybody else should do likewise, until it becomes so that they can see in the road ahead. I submit that the following opinions are in principle opposed to the opinion in the present case: Kelly v. Schmidt Zeigler, 142 La. 91, 76 So. 250; Southall v. Smith, 151 La. 967, 92 So. 402, 27 A. L. R. 1194; Castille v. Richard, 157 La. 274, 102 So. 398, 37 A. L. R. 586; Woodley Collins v. Schusters' Wholesale Co., 170 La. 527,128 So. 469; Parlongue *Page 710 v. Leon, 6 La. App. 18; Pepper v. Walsworth, 6 La. App. 610; Ward v. Donahue, 8 La. App. 335; King v. Emmons, 10 La. App. 205,120 So. 648; Pollet v. Robinson Lumber Co., 10 La. App. 760,123 So. 155; Kern v. Knight, etc., 13 La. App. 194, 127 So. 133; Dominick v. Haynes Bros., 13 La. App. 434, 127 So. 31; Krousel v. Thieme, 13 La. App. 680, 128 So. 670; Raziano v. Trauth,15 La. App. 650, 131 So. 212; Woodley Collins v. Schuster's Wholesale Grocery Co., 12 La. App. 467, 124 So. 559; Safety Tire Service, Inc., v. Murov, 19 La. App. 663, 140 So. 879; In the cases13 La. App. 434, 127 So. 31, and 19 La. App. 663, 140 So. 879, writs of review were applied for and refused.
In Blackburn v. R.R. Co., 144 La. 520, 80 So. 708, it was held that a train must be operated at such speed at a place where objects on the track may be reasonably expected, looked for, and apprehended, that it can be stopped within the distance an object, such as a man lying on the track ahead of the train, can be seen in time to stop and avoid striking him. In the case just mentioned the train was being operated in the daytime when the view ahead was clear. If it had been at night, then the rule would apply to a train only in case, after the object was seen, the train could be stopped.
I think the weight of authority is such that our opinion should conform thereto. Under the preponderance of opinion Thompson was guilty of contributory negligence of such nature and kind that his negligence helped bring about the collision. I think the judgment appealed from should be reversed and his demand rejected.