*1 Willie HERRIN
v. et al. PERRY
David PERRY et al.
Willie HERRIN et al. 49579, 49589, 49580,
Nos. 49597.
Nov. 1969.
Rehearings in Nos. 49579 Denied Dec. Opinion
Concurring Dec.
«35 Watson, Murchison, Brittain & Natchi- toches, Farm Bureau Casual- for Southern ty Co., respondent. Ins.
Roy Roy, & Roy, Marksville, Chris J. *2 Herrin, for Willie plaintiff-applicant-ap- pellee.
HAMLIN, Justice.
In these consolidated tort actions de manding damages physical injuries for and property resulting loss from a head-on collision between pick-up Willie Herrin’s pick-up truck and truck driven Luer Perry, ine B. we directed certiorari Appeal, Circuit, of Court Third for re VII, judgments. 11, view its Art. Sec. La.Const, 1921; 167; 215 So.2d 215 So. 177; 304, ; 2d 253 La. 253 217 407 So.2d 305, 306, 407; La. So.2d La. 217 253 408; 307, 253 217 La. So.2d In the case of So.2d Appeal reversed and Sissin, R. Jones, Robert Norman L. J. set aside the awards the district court Sexton, Rouge, Gray for State Baton individually and favor of David through the Perry; their B. favor Luerine defendant-applicant. Highways, The Court re- claims were dismissed. Alexandria, Gold, Skye, for Hall & $1,500.00 dismissed versed and the award Perry, plain- B. David and Leurine on behalf of his favor of Guste, Jr., tiffs-relators. William James J. child, Perry, as Willie minor Nadine Orleans, Colomb, Jr., for T. Enas M. New Bureau Farm Cas- and Southern Lane, amicus curiae. it Company affirmed ualty but Insurance Indemnity Alexandria, Royal Com- Pitts, defendant Royal & Stafford for pany.1 Indemnity Co. majority opinion, Judge insofar from the Tate dissented reversal Judge agreed Herrin free trial Hood held Willie court. straight, immediately case of Herrin v. 215 So.
In the north and gradually scene it 2d the Court of reversed curves to the west judgment the trial court sign aside the there is a set curve on the east suit. Herrin’s had dismissed Willie shoulder about 500 feet south of the which speed curve. The judgment per It rendered in favor Willie limit is 60 miles Perry, The hour. against David Herrin and Highways, Department of
Louisiana State “The accident occurred on March Royal Indemnity Company, jointly about 11:3G m. had fall- a. Rain solido, $59,246.56, and in sum en day pavement earlier costs, plus interest wet, only ‘misty’ but it at the Indemnity Royal Company being limited time of the collision. $20,000.00. policy further The Court crew, “A sign repair Her judgment rendered favor of Willie Department Highways, had Farm rin for on behalf Southern north, their headed on the east Company Bureau Insurance highway, side of the north 6 feet supra, the sum defendants sign, of the curve which intended to interest, $1,630.00, be plus the award *3 change larger preponder- to a size. A Royal Indemnity Company’s ing subject to ance of the evidence the shows that liability.2 limitation of left-hand wheels of the truck extended traffic, out leading filing plain- facts the into the The northbound lane partially correctly the obstructing suits are stated it. A northbound tiffs’ as follows: go partially vehicle had to the west into pass lane of traffic the truck. is Loui- scene of the accident on “The plaintiff, the “The Highway also known Willie siana No. two-lane, only eyewitness two-way, Mrs. Road, a collision. Latanier road, Perry nothing could about the blacktopped secondary running gen- remember Highway Department accident. The 3 erally through a rural north and south in the truck. employees were cab their asphalt pavement farm area. They pass heard the heard Herrin each side 20 feet wide with shoulders on collision, fogged their windshield was aof For at least feet. they nothing saw scene, road is mile south of Judge Judge fault; Hood con- Perry Tate dissented. not free of and Luerine part. part disagreed holding curred in dissented with the operators Highway truck were negligent. “Herrin’s Perry, version the accident is as lane traffic. Nadine [Luerine farm, just dairy left He had his seriously follows: Herrin Willie injured a short distance located south of as a result of the accident.] accident, driving scene was northerly speed in a direction at a “The stopped crew testified here per 40 to 45 miles saw the hour. He part the highway] traveled [main Highway Department parked truck on to change sign larger to a the curve pavement about ahead. of mile They park size. did farther on approached As he he slowed shoulder bogging for fear of down. precaution his horn down blew as a They stayed parked truck for over any might around for workmen who raining. minutes because pass- Then he moved into truck. other Statements of witnesses show lane, observing any oncoming although ‘misty’, there it was traffic and for workmen around enough anyone stop1 rain else point truck. he had reached a When working their or even use windshield parked he close behind the truck steps wipers. About 114 south pass’ ‘committed to he saw place where truck was.
Perry coming vehicle around curve parked, driveway each there was ahead. side of the road the truck could where says Perry appeared “Herrin truck easily entirely high- off the pretty 'coming to be fast’. He accelerat- way.” ed, passed Highway Department husband, and her Dav- Luerine B. truck and returned to his lane own Perry, individually id and on behalf of their appeared to It travel. daughter, pas- 20 month who old was a ‘got and, Mrs. faster’ senger curve, angled left into she accident, damages filed suit for him Herrin’s lane and struck Herrin and in- Willie there. surer, Bureau In- Southern Farm “The collided left front *4 Company, surance State of Loui- far af- left front. Neither moved siana, Department High- through the of impact. went ter the Herrin’s vehicle insurer, ways, Royal In- and its off head first into the ditch on the east demnity Royal Indemnity Company; Com- The highway. of $20,000 per pany’s coverage is limited to rest spun counter clockwise and came to $100,000per accident. person and facing generally the west in northeast damages his The in sustaining In suit for Willie Herrin 1. Court erred immunity plea urged named as defendants David State of on be- Louisiana, Department through the of (cid:127)of half Louisiana, of of State Highways, Royal Indemnity Company. through Department High- alternative, sought In the Herrin to recover ways. insurer, own Southern Farm 2. The Court erred as matter of law Company, Bureau un- Insurance held, when it its own under fact find- der uninsured motorists clause. ings as to way truck, this was Louisiana, through The State of proximately causing accident. Department excep- Highways, filed an immunity tion of suit in holding The Court erred n case.3 The trial thereafter court dismissed plaintiff negligent in Herrin was not plaintiffs’ Department.4 The suit to the as attempting Highway pass Department inadvertently Highways being said based on the contention immunity did not exception file an actual and measurements distances suit; Herrin excep- it filed such an found the Court of Appeal, the Court of which over- bearing upon provisions tion judgments, supra, The ruled same. Highway Regulatory governing Act rendered, granted and this certiorari (LSA-R.S. 32:- maneuvers. applications on the of the State of Louisi- 75)
ana, through Highways, Department 4. The Court erred its reversal of Royal Indemnity Company (Royal In- question the trial court on the demnity Company separate applica- filed a negligence, said Herrin’s reversal be- tion the suit of et al. v. David manifest violative error al.), Willie et Willie rule, by a as evidenced three to two Perry. and Luerine B. split of the five member court on question. this Indemnity assigns Royal this Court Louisiana, following judgments through The the De- errors State of Appeal: partment Highways, the Court of contends that 3. The III, it Highways never been is a Louisiana, [*] “ Section 35 of the Constitution Department suit [*] of the State authorized [*] as is plaintiffs’ suit, required Highways Louisiana, Legislature insofar averred Article has therefore the immune from for this Ilighwaj's the dismissal of the Perrys cause of action.” adopted was error. did not suit urge these year 1921, in their plaintiffs appeal *5 Appeal maintaining in Court of erred not Southern Farm Insurance Com- sovereign exception immunity. pany Court, filed brief in this in which prays it that the uphold court the decision Perry Perry and Luerine B. con- Appeal the Court of in all of the cases tend: before this Court. majority 1. The Appeal Court of finding point erred in that A review the records in these impact between the cases, reading testimony, and a place and the Herrin vehicle in took study of the exhibits offered in evidence the Herrin vehicle’s lane. convinces Appeal us that the Court of was correct in finding majority Appeal 2. The of the Court of Highways’ negligence clearly was holding erred in that Mrs. cause accident.5 The approaching plain in view when disposed will he began Mr. ma- infra negli our after determination neuver. gence Perry. of Luerine B. majority 3. The of the Court erred in failing to find that Mrs. A reading of these records con faced with a sudden strains us to conclude that the factual find making. her own ings analysis Appeal of the Court of and its testimony 4. The failing Court erred are no increase correct. There is the awards made in need behalf of Nadine for reiteration than other what we quoted Perry. supra. Luerine B. find that the ac We cident occurred Herrin’s Willie lane Willie Herrin judg- contends that traffic. correct, ments Court of are “ * * * except quantum insofar as is concerned. the driver of an automobile prays judgment He in his wrong favor be involved in a collision lane $156,906.11 amended as to award him presumed negli- of traffic is to have been and affirmed in all respects. gent other bears the burden of establish- “Entirely bighway. necessary may The trial court said: aside While questions park from tlie of violation of the times for the work crews to Highway Regulatory Act, Depart- parked, appears or the as this truck was there safety rules, justification ment’s this is con- to have been no leav- highway vinced that it- was this truck on when no Highway Department progress truck to have been work was or even standing was, testimony according left as it as the result to commence trap dangerous was to create a situa- of the crew members.” traveling tion for other vehicles Appeal, Herrin acted reason- fault or Willie ing that he without ably compliance traf- justified circumstances there were Cutrer, regulations.6 fic Rizley 232 La. v. his conduct. 139; Bourgeois Indi Le 32:141, Stopping, standing or Mutual Com ana Insurance Lumbermens *6 dis- parking outside business or residence Cir., 720; Car La.App. 101 pany, 1 So.2d tricts, provides: Cir., Scott, La.App. 2 104 So.2d
hee v. Cir., La.App. 236; Upon any highway 3 Valin, “A. outside a Breaux v. district, In Laughlin person Allstate 405.” business or residence 138 So.2d no any La.App., Company, stop, park, standing 169 ve- surance So.2d shall or leave Fowler, La.App., unattended, See, hicle, up- Pittman v. whether attended or 396. 172; In Transport paved part Moreau v. main of the So.2d or traveled Company, La.App., highway stop, practicable 203 So.2d when it is to surance park or such so leave such vehicle off La. So.2d part every highway, said event the facts circumstances Under highway an unobstructed width of the quoted law cited and these cases opposite standing a be left vehicle shall Perrys supra, sus- do not find that the we passage for the free other vehicles They proof. did tained their burden of stopped vehicles a clear view of such Perry was free prove Luerine B. shall a distance of two be available from faced prove that she was fault, nor did upon hundred feet such each direction she a at with sudden highway. Her- pick-up truck into Willie her veered his with rin’s lane traffic collided Kenknight, La.App.,
vehicle.
In
West v.
408, 410,
stated, “A violation
Court
findings
re
upon
Because of our
to
relating
statutes
respect
spect
B.
and with
con-
highway
to Luerine
a
portion
the main traveled
se,
per
is well
Department
negligence,
but it
negligence
stitutes
of the
to
conclude,
recognized
negligence
is action-
did
Highways, we
any
operation
terfering
with the safe
to
“No
shall be driven
the left
vehicle
opposite
approaching
from the
vehicle
of the
in over-
side of the center
any
pro-
passing
taking
overtaken.
direction
every
vehicle
another vehicle
overtaking
ceeding
must
vehicle
event
unless such
same direction
right-hand
road-
clearly
side
return to
and is free of
side
visible
left
way
coming
hundred
one
oncoming
before
within
for a sufficient distance
any
approaching
overtaking
permit
feet of
ahead
opposite
32:75.
completely
in-
direction.”
without
made
only
legal
if it
able
is the
cause of
ac-
incumbent
the driver of the truck to
obey statutory
highway;
cident.”
laws of the
his
Manual,.
Safety
instructions contained in the
replete
The evidence
effect
Department
Highways, (504)
em-
the time
the three
accident
Responsibility,
p.
Drivers’
(b)
recite:
ployees
of the
“He is
public
considered
sitting
Highway truck
were
the cab
representative
and is not
approxi-
which had been
there for
only expected
to abide
the laws of
mately thirty
being
minutes. No work was
highway,
supposed
example
but is
set an
performed by
employees,
nor was
these
good driving
for others
and road
By
preparation
their
made to
being
work.
courtesy.” (Emphasis ours.) The violation
testimony
own
these
state
negligence
constituted
and such
rain, misting rain and
had come
“there
was the
cause of
accident.
waiting
we
it to
sitting
in there
stop.”
approach
very important
We now
matter,
namely,
issue
this
alleged
words, they
taking
In other
a rain
sovereign immunity
circumstances,
break. Under such facts and
Highways.
park-
practicable
would have been
*7
provides:
depart
ed
48:13
“The
the truck
the
LSA-R.S.
elsewhere. Also under
circumstances,
highways
ment of
hereby
is
declared
facts and
truck
to be
and
body
continued as a
(even
politic and cor
lights
blinking)
consti-
if
porate by
department
tuted
It
title. The
safety.
a hazard to
is
control,
highways
necessary
shall
function under
pass
what would
we
on
management, supervision
practicable
been
the em-
and direction of
if
ployees
highways
the board
changing
sign
pro
had been
in the manner
vided
VI,
time of the
It
Article
19.1 of the
accident.
not neces-
also
Section
sary
precautionary
provides:
that we
Constitution.”
detail
measures
LSA-R.S. 48:22
department
employed
rights,
which should
if
“The
have been
work
has all of the
had
in progress.7
powers,
been
corpora
find
at the
and immunities incident to
We
administer,
own,
time
Department
may acquire,
It
accident,
tions.
alienate,
Highways’
illegally parked
dispose
in vio-
and
all kinds
otherwise
32:141,
lation
immovable,
supra.
property,
It
tangi
movable
Safety
Safety
distance,
flags,
See,
Manual,
7. The
Manual of the
etc.
Highways,
evidence,
Highways, pp.
submitted
con-
regulations
tains detailed
rules
108-121.
respect
lights, barricades,
warnings,
contract;
alter,
intangible;
adopt,
process,
govern
against
suits
state
“ble and
n or
seal;
sued,
bodies;
procedure
destroy
public
and be
an official
sue
othér
suits,
(Emphasis
applicable
implead,
impleaded.”
such
the absence of
and be
(cid:127)
ours.)
procedural
by promulgated
rules
. Legislature,
be
in suits
the same as
1921,
as
Ill,
Art.
La.Const.
Sec.
private
judgment
between
litigants. No
1960, adopted No-
by Act
(cid:127)amended
621 of
body
public
against
any
the state or
other
provides:
vember
except
payable
paid
exigible,
shall be
or
appropriated
payment
out of
for
funds
empowered
Legislature
“The
* * *
any
thereof.
In the case of
or reso-
waive,
special
general laws
or
claim on which suit heretofore has been
and from
lutions,
immunity from suit
Legislature,
authorized
and the
state,
parishes,
ground
suit was
dismissed
subdivisions, pub-
municipalities, political
liability had
immunity
defendant’s
institutions,
com-
boards,
departments,
lic
waived,
not been
the same
another suit on
agencies
missions, districts, corporations,
may
prior
claim
filed at
be
gov-
public or
other
and authorities and
1, 1962,
n ernmental
January
suit
and such
shall
bodies;
authorization
and each
subject
judicata
be
of res
defense
for suit
Legislature
prior
based on the
suit
dismissal of
body, here-
public
other
or
State
granted,
on such
and hereafter enacted or
claim.”
tofore
and shall
shall be
to be
construed
In brief the
n effective and
purposes,
valid
all
contends:
thereof,
a as waiver
of and from the date
immunity
(cid:127)of
defendant’s
both
Legislature
“The
intended
never
liability.
Legislature
suit and from
cause
would
constitutional amendment
shall,
or
by special
general laws
reso-
governmental
prior
creating
all
acts
State
lutions,
in-
prescribe
procedural rules,
authority
agencies
giving
them
cluding
rules of venue and service
sue
be sued’ to
considered
‘to
opinion,
corporate,
commission,
districts,
is a
“The
our
dis
bodies
levee
which are
legal entity
constructing
purpose
tinct
from the state.
Sec
created
(Ex.Sess.)
duties,
maintaining levees,
tion 3 of Act No. 95 of 1921
which are
and
devolving
*8
body
power
corporate,
primarily
mates it a
state.
”***
agency
350,
Allen,
sue and be sued.
an
It is
v.
172 La.
Saint
state,
itself,
246,
See,
of the
and not
the state
Em
Jones v.
134 So.
purpose
executing
Liability
ployers
Corp.,
created for the
of
cer
La.
Assurance
duties, devolving primarily upon
534; Kallenberg
App.,
tain
v.
182 So.2d
general
sense,
Klause, La.App.,
73,
state.
a
in its rela
La.
162 So.2d
246
state,
356,
tions to the
it is
dissimilar
not
951 952 liability. immunity hereby tort Doe
waivers of authorized to file' “John of against Louisiana, the drafters It intended suit State of Legislature. through amendment nor of ** * say (Emphasis added.) read otherwise is to into To something simply that not there. statute prompted Legis- could have “What pass
lature to Act if 285 of 1966 it had intended a constitutional amendment Legislature “This lack of intent —at passed years general six earlier to be a least insofar as immunity? respectfully waiver of It is ways is an concerned —is demonstrated Legislature submitted did not in- by the overwhelmingly convincing fashion 3, tend the amendment Article Section passage consti- fact since the general a Constitution to be amendment, Legislature has tutional immunity from tort waiver suits grant legislatively nonetheless fit seen Louisiana, through State and on a case case basis waiver Highways.” immunity prescription and renunciation of no dif- less that 350 instances! It is find merit in the above con We no Legislature imagine ficult how City tention. In Hamilton v. Shreve have intended the amendment to could 529, port, 247 La. we observ 784, 174 So.2d general immunity, then waiver ed amend the above constitutional go granting expense to the effort and ment Duree v. nullified the decisions special pas- Moreover, waivers. Co., 166, Maryland Casualty 238 La. 114 So. sage of Act (now 285 of 1966 594, Stephens 2d Natchitoches 24:152) is a fact manifestation of the 793, Board, School 238 La. legislature could not and did Legislature holding that whenever intend the constitutional amendment of Article suit authorized under Section general immunity. be a Act waiver of III as amended Constitution years passed almost six after 1966— simply pursuant to Act 385 of No. provides the constitutional amendment — immunity state the traditional waived future, authorizations suit au its from suit subdivisions e., (i. of immunity) waivers be handled thorization did a waiver not constitute resolutions, omnibus in lieu bills liability for agencies the state its of the rather awkward fashion in which negligence of one being were theretofore handled. In the governmental exercise of function. form, gives examples act certain case, held Hamilton that under we very plea govern- and the first Amendment a is: Constitutional *9 953 954 by immunity urged mental City of We conclude that the Court Shreveport could not be maintained. We was correct overruling exception in ruling now hold that our Hamilton immunity by from suit filed State of applies case plea governmental Louisiana, through Department immunity urged of Highways.
Highways. further hold that We the “sue study A the record reflects and provision be sued” in the charter or Appeals Court of did not abuse its organic any body act of enumerated in discretion in its award Herrin. to Willie 1960 Constitutional Amendment must be opinion, 177,179, Its discloses that general construed immunity waiver it considered of damages all factors and See, Bridge suit. v. Lambert Austin $59,246.56 the award of was arrived Company, La.App., Belle 189 752. Cf. So.2d at after serious deliberation. find the We Fontaine Tow. Co. v. just award compensable. and ways, Louisiana, D.C., F.Supp. State of For assigned, judgments the reasons Circuit, Appeal, Court Third find Act We al., Perry David et Herrin et al. v. Willie 24:152, against LSA—R.S. Suits state or al., Willie v. David et subdivision; political bill omnibus or reso are affirmed. All this costs of Court lution; form, has no on the instant effect David Herrin et al. et al. Willie v. plea governmental immunity. In Pierce equally against to assessed Fidelity York, v. Co. New Royal Company; Indemnity all costs correctly So.2d this ex Act was this Court in Willie Herrin David plained as follows: paid by Royal Indemnity et al. Com- to bill, opinion “It is our that the omnibus pany. purpose: R.S. 24:152 serves a two-fold designed apply It (1) those dissents, McCALEB, J., being in accord special agencies in Section enumerated expressed views the district re- 26 of Article have not been 19 which judge Judge Tate of those of original stored to their status cor- La.App., Appeal. See So.2d suit, porate (2) subject entitles page 174. attorneys, an out of cases which FOURNET, (dissenting). Chief Justice caution, legis- seek obtain abundance of of this case I According the facts have done authorization as lative majority agree filing cannot with the view past suit when Highways is liable for political state or subdivisions.” 95 5 damages resulting hortherly from the collision direction in the 60 mile" zone hour, per ánd about .40 the Herrin vehicles. 45 miles
between saw pavement ofY\ ap- court of These facts as found ahead; thereupon, precaution a mile as a peal majority adopted in extenso might be around workmen who pertinent decision and insofar as for a n speed and blew he reduced *10 succintly oc- may stated. The accident lane; passing his horn the as he into moved misty during a. m. cured about 11:30 upon reaching point and so be- a close weather, having rain ceased the earlier hind the truck that he was “committed Highway No. blacktopped on the pass” “coming he vehicle saw the 457, running generally north and south pretty Her- fast” around the curve ahead. area; through farm and at least a rural rin then the speed, passing accelerated his ac- of the scene the of a mile south of Y safely truck of returned to his lane immediately straight cident the is road but travel, (thus fully complying with L.R.S. gradually north thereof curves 32:7s),1 Mrs. when he noticed who curve About 596 feet south of the west. upon was driving, negotiating the curve placed a Highways had the of angled speed at his an accelerated into sign warning of the curve a motorist traffic, (Herrin’s) colliding of with lane safely speed regulate his could order to his the left of her strik- front truck curve, replaced negotiate being the was point the left of at a 142 feet his by larger sign with a three north sign. of the curve who, accomplish the order to this, fully agree Under the parked their headed north these facts I with had truck majority Perrys did highway not sus on the side of the with view east their’s, work, thereof, they proof tain the that was back from had burden of which fault, they practical they nor sign bog- free of “did as near the without down, prove necessarily Perry) faced ging leaving (Mrs. hand that she the left she time wheels of truck sudden extended out a few Her truck into Willie pick-up feet into northbound traffic. veered her lane of his driving At and collided with who in a rin’s lane interfering operating 1. No be driven safe vehicle shall the left out any with the highway opposite approaching side of the center over- from the vehicle taking passing pro- any In another overtaken. vehicle direction or vehicle ceeding every overtaking in same vehicle must direction unless event clearly right-hand such left side in is side of the road- visible and return to the oncoming way coming free of traffic for within one hundred a sufficient before permit overtaking approaching distance ahead to from the such feet vehicle completely opposite to be made witli- direction.” may agree necessity But I cannot with the some vehicles because vehicle.” just parked paved portion highway, majority that because the on truck Depart highway is evidenced the fact that further therein, provided an every ment of was liable because “but event highway opposite unobstructed width “illegally parked truck was in violation 32:141”, standing it was vehicle shall be reasoning that left for free passage clear upon obey other vehicles and a view “incumbent the driver to statutory stopped “to shall be available highway,” laws in- a distance two example good an hundred set for others feet courtesy.” holding upon highway. each direction driving and road is This (Emphasis only added.) direct contravention very majority, authority upon relied illegally my opinion the truck was not Kenknight, La.App., West v. parked. being It was used they quote, “A which violation way performance relating statutes public duty provide safety for the portion main traveled larger by replacing existing sign with a se, it well negligence, per constitutes sign. The warning efficient more action recognised that such purpose was being used *11 the ac only legal able is the cause it if question necessarily parked place in the the cident” from overlook in work order for the crew to be able to itself, very language R.S. of the statute job the re- from the rear of the truck as 32:141,2 prohibit parking of it does not the paved quired parked as far off the highway the condi a truck on the under practical portion highway of the without only statute tions hereinabove stated. The Thus, the truck bogging in the down ditch. prohibits parking paved portion the on the conformity the parked in strict highway practicable of the “when Herrin parties All statute. concede Perry stop, park have seen off such and Mrs. saw or should or so leave such vehicle of the the side part highway truck highway.” legislature said That feet exceeding the 200 contemplated for a distance adopting in road statute highway opposite Upon highway of the strueted width 2. “A. outside of a busi- standing district, person shall be left for vehicle ness or stop, shall residence no passage any vehicle, park, standing vehicles and of other free or leave stopped upon unattended, shall of such whether attended or paved clear view high- part hun- a distance two or main traveled available high- park way stop, practicable such in each direction when it dred feet way.” part of leave off such vehicle every highway, unob- said but in event an each, required by law. who damages, direction has recovered by his own testify, only eyewitness testimony, Mrs. which majority accepts, having transpired, no actually exonerates the Highway Depart- recollection what truck at least The majority stated he saw ment. finds that Mr. Herrin of a mile before he reached it. had returned his lane of traffic when separated more than 100 feet the Herrin reasons, respectfully For I these dissent. only vehicles. The other evi- testimony dence besides his relates BARHAM, (dissenting) Justice physical findings distances between join Justice, I in the dissent Chief points highway, certain on the the location dissent the further reason that even point vehicles, some of the and the negligence if there parking impact, all requiring which are matters Highway Department under the conjecture interpretation. The majority facts I no recited find way Department caused no deviation negli- causal connection between such reasonable care not cre- and did gence and the accident. Perry. ate emergency a sudden for Mrs. possibly What causal relation could there The majority has found that Mr. Her- been parking between its the acci- passed rin had department’s truck and dent? proper was back in his lane of before collision; that Mrs. was faced For these I respectfully dissent. reasons with no sudden and was at fault swerving lane; wrong and that into SUMMERS, (concurring part Justice Highway Department negligent dissenting part). having parked partially its truck on the my view Luerine and her B.
road. The majority held the husband, Perry, individually and on Highway Department cause twenty daughter, behalf of their month old explaining accident without Nadine causal should recover between connection department Highways and truck and the accident. insurer. I plaintiffs, conclude that the who bear proof,
the burden have failed to es- *12 tablish Highways causation between negligent were act employees Highway Department of the partially truck too near the curve and in operation of its vehicle and obstructing the col- lane the eastern of travel. Indeed, lision. condition, plaintiff Mr. doing created a hazardous the Herrin and when SANDERS, in denial (concurring Justice upon came the scene Mrs. con- rehearing). emergency, fronted with sudden her only application The rehearing negligent.
actions were of the emergency, Under the doctrine sudden its insurer. I subscribe to the denial of suddenly posi- one who finds himself in a rehearing. peril,
tion of imminent
without sufficient
Highway
I
am convinced the
weigh
to consider and
all the cir-
guilty
negligence in park-
may
cumstances
best
means
ing
their truck on
during
adopted
danger,
impending
avoid an
break,
practicable
rain
when was
elim-
guilty
adopt
if
he fails
by parking
hazard
inate
the truck
reflection,
subsequently,
may
what
employees’
elsewhere.
conduct
The
violates
method,
appear to have
better
unless
been a
Regulatory
Highway
both
(LSA-
Act
emergency
which he finds himself
32:141)
Depart-
and the rules of the
R.S.
brought
negligence.
his own
Dane
ment itself.
v. Canal Insurance Company, 240 La.