The facts in this case have been stated in our original opinion, and to which reference may be had for the understanding of the same.
Speaking of the rut or ditch, across the detour road, into which the automobile was driven, in which the plaintiff was riding and which caused it to rebound resulting in injury to plaintiff's back, we said in our former opinion that it was about 12 or 15 inches wide and about 6 inches deep. The driver, Roumain, testifying as a witness for plaintiff, says he judged it was about 10 or 12 inches wide and about 6 inches deep. Our error in saying it was 12 or 15 inches wide is admitted, and correction is now made.
Plaintiff's brief on rehearing states that the testimony of Dr. Amedee Granger was *Page 499 received in evidence and was not mentioned in our opinion. Plaintiff is mistaken in saying that it was received in evidence, but correct in saying that it was not mentioned. The record shows that the testimony of Dr. Granger was taken in New Orleans by commission in support of an X-ray which he caused to be made of plaintiff's back. The note of testimony shows that his testimony was offered in evidence by the plaintiff and objected to by the defendants, one of their objections being that the witness did not sign his deposition. The court ordered that it be returned to the notary public in order that the witness might sign it. The note of testimony indicates that it was done and signed, returned into court, and again offered in evidence, but was objected to again by the defendants on the ground that some of the cross-interrogatories propounded to Dr. Granger had not been answered. The court reserved its ruling, and it does not appear that any ruling was made on the objection. His testimony does not appear to have been received in evidence, and it was not mentioned on that account, but local physicians having testified as witnesses that they had examined the X-ray which he had caused to be made, without objection as to what it disclosed, we gave effect to the testimony in acting on the case.
The right of plaintiff to recover is the serious question to be decided. Our first conclusion is stated in our former opinion as follows: "According to Maggio, the rut was not a concealed or unknown danger which the driver of the automobile could not foresee and had no right to expect, but was an object ahead obvious to the view and plainly visible to the eye of one paying attention, and could and should have been seen by Roumain in time to have slowed down and avoided striking it." And in another place we said:
"It was broad daylight and the dirt detour, the temporary highway, full of dust, was in itself a warning to drive slow and keep a careful lookout ahead so as to be able to stop or slow down within the distance which an object in the road ahead could be seen in time to avoid it.
"It is our conclusion that there was such culpable fault, carelessness, and negligence on the part of Roumain in not seeing this rut or ditch and in driving into it at a speed which caused the automobile to rebound with such force as to injure the plaintiff, and to render the defendants liable to him in damages for the injuries sustained."
The plaintiff does not claim in his testimony that the automobile was driven negligently. He was asked on the trial of the case:
"Q. He (meaning Roumain) drove carefully? A. As far as I could see, yes."
In another place he said:
"Q. He was not driving wildly nor recklessly? A. Not to me."
Reconsideration and further study of the testimony has led us to the conclusion that the rut or ditch into which the automobile was driven was so nearly filled with dust that its real depth was not determinable by Roumain as he approached it. The rut or ditch was therefore not an obvious danger, nor one plainly to be seen by Roumain, but constituted a latent defect and danger in the road which was not fault nor carelessness nor negligence on his part not to see and guard against.
When Duncan, as guest, accepted Pedarre's invitation, as host, to ride with him in his automobile on the trip from Baton Rouge to Toledo, Ohio, and took the back seat assigned to him, he accepted all the ordinary dangers and risk which attended riding in the back seat on the trip in question. The detour they took was the highway for the purposes of the trip and a necessary part of the road over which they had to drive. For this purpose the guest shared with his host the ordinary risk and dangers which accompanied the traverse of the detour.
We are satisfied, after reconsideration and further study of the case, that there was no fault on the part of Pedarre and his driver in not appreciating the depth of this rut or ditch in the detour. It was so nearly filled with dust that it was barely noticeable to one approaching it driving an automobile. Its depth was not observable by a prudent driver; consequently the danger due thereto could not be realized until the wheels of the automobile had run into it. Just why it came to be there, the evidence does not explain. The soft dust in it let the wheels go down to a depth which it did not appear to have to an approaching observer.
In our first opinion we quoted from Jacobs v. Jacobs,141 La. 272, 74 So. 992, L.R.A. 1917F, 253, in which the situation, *Page 500 was like that which existed in the present case. The roadway was apparently, and believed to be safe, ahead; there was no reason to expect such a danger, and it was unseen and unknown until it was suddenly encountered, without opportunity to avoid it.
The rule of liability between host and guest in such a situation as stated in the Jacobs Case has become jurisprudence in this state. The language used is in harmony with the rule stated on the subject in Cyclopedia of Automobile Law by Huddy, vol. 5-6, subject, Guest and Passenger, § 131, pp. 221 and 222. We copy from this author as follows:
"As between the driver of a motor vehicle and an occupant thereof, the driver is not an insurer against latent defection in the road. To justify recovery by the occupant for injuries received, he must show negligence on the part of the driver in operating the car."
Applying this rule, Roumain, driving for Pedarre, was not negligent nor at fault in operating the automobile; consequently the injury Duncan received was the result of a latent risk and danger assumed by him as guest when he entered on the trip, and for which the host is not liable.
As stated in our former opinion, the evidence does not indicate that the automobile, while in the detour, was driven faster than 20 or 25 miles an hour, nor that Roumain was not giving proper attention to the road. He says he was speaking to Maggio as the automobile approached the rut, but a man driving an automobile can speak to another sitting on the front seat at his side without neglecting the watch of the road ahead.
It is not necessary to discuss the case any further. We have come to the conclusion that our first opinion and decree herein was erroneous and that the judgment appealed from is erroneous and should be annulled, avoided, and set aside, and plaintiff's judgment rejected at his cost in both courts. We are placing our judgment on that ground, and would stop here were it not that we have also reached the conclusion that Pedarre did not give timely notice to his insurer of the injury which Duncan claimed to have received. Duncan exclaimed that his back was broken at the time of the rebound, and his injury appeared to be so serious that he was taken out of the automobile and laid on the grass by the side of the road, apparently suffering seriously with an injury thus received, and continued to complain of the same during the balance of the trip. We have become convinced that the delay of Pedarre in giving notice to his insurer served to discharge United States Fidelity Guaranty Company from liability under the policy sued on. We are taking this opportunity to recall our former opinion on that subject; but our present judgment, that the plaintiff Duncan has no right to recover of the defendant Pedarre, will terminate the case against both defendants.
For these reasons our previous opinion and decree herein is now recalled and set aside. The judgment appealed from is now annulled, avoided, reversed, and the demand of the plaintiff, Thomas M. Duncan, against the defendant Roch H. Pedarre and United States Fidelity Guaranty Company, is refused and rejected, at his cost in both courts.