Herrin v. Perry ( 1969 )

BARHAM, Justice

(dissenting)

I join in the dissent of the Chief Justice, and dissent for the further reason that even if there were negligence in the parking of the Highway Department truck, under the facts recited by the majority I find no causal connection between such negligence and the accident.

The majority has found that Mr. Herrin had passed the department’s truck and was back in his proper lane of traffic before the collision; that Mrs. Perry was faced with no sudden emergency and was at fault in swerving into the wrong lane; and that the Highway Department was negligent in having parked its truck partially on the road. The majority held the negligence of the Highway Department a legal cause of the accident without explaining the causal connection between the parking of the department truck and the accident.

I conclude that the plaintiffs, who bear the burden of proof, have failed to establish legal causation between any act of the employees of the Highway Department in the operation of its vehicle and the collision. Indeed, Mr. Herrin, the plaintiff who has recovered damages, by his own testimony, which the majority accepts, actually exonerates the Highway Department. The majority finds that Mr. Herrin had returned to his lane of traffic when more than 100 feet separated the Herrin and Perry vehicles. The only other evidence besides his testimony relates to physical findings such as distances between certain points on the highway, the location of some of the vehicles, and the point of impact, all of which are matters requiring conjecture and interpretation. The Highway Department caused no deviation from reasonable care by Herrin and did not create a sudden emergency for Mrs. Perry. What causal relation could there possibly have been between its parking and the accident?

For these reasons I respectfully dissent.