Mansur v. Abraham

My dissent is only from that part of the opinion and decree which holds that Joseph Abraham, defendant, was not negligent and at fault for not stopping as soon as he was blinded, and, if not necessary to come to a full stop, for not slowing down to such speed that under the light afforded by the headlights of his own automobile the unlighted truck stopped in the highway ahead of him could have been seen in time to have avoided striking it. And I think his guest, Peter Mansur, riding on the front seat with him, was also negligent and at fault for not warning Abraham as soon as he was blinded, upon seeing that he did not stop or slow down, to do so, until the situation in the road ahead could be seen and steps proper to safety could be taken.

It is my understanding that the preponderance of judicial opinion in this state so requires, when the driver of a motor vehicle is for any cause blinded and cannot see objects in his way ahead so as to admit proceeding with safety. It is my understanding that the rule is specially applicable when driving at night on a highway like the one on which this accident occurred, subject to frequent use, that motor vehicles and other things stopped in the road without lights and unable to move out of the way may be avoided. I think prudence in driving requires that it be done. I think stopping when actually blinded, and if not totally blinded, a slowing down to such speed that one can stop within the distance the headlights of his own automobile illuminate the way, is the contemplation of Act No. 296 of 1928, § 52, which says: "Will at all times mentioned in Section 50 and under normal atmospheric conditions and on a level road produce a driving light sufficient to render clearly discernible a person two hundred feet ahead. * * *" There are other pertinent legal provisions on the subject, but the one quoted is sufficient for present purposes.

As for the lady guests who occupied the rear seat, I think they should recover. Churchill v. Texas P. R. Co., 151 La. 726,92 So. 314; Delaune v. Breaux, 174 La. 43, 139 So. 753.

There have been situations in which it has been held that it was not negligent for one driving on a frequently used highway at night to be unable to stop in time to prevent striking an object encountered unexpectedly. Penton v. Fisher (La.App.) 155 So. 35, is, in my opinion, such a case. In that case the opinion says, on page 39 of 155 So.: "The Entrevia truck was being driven at about 15 or 20 miles an hour; that you could not see more than 15 or 20 feet ahead; that, as their truck came down a hill and started across the level space at the foot of the hill, they saw the Fisher automobile 15 or 20 feet ahead in an angling position across the road on the side of the road on which they were driving."

The provision in section 52 did not control in the Penton Case, because the opinion shows that the road was not level; the truck having descended one hill and faced the ascent of another. Two decisions of the Supreme Court are cited in the opinion as supporting the right of the plaintiff to recover under the facts of that case.

In the case Hanno v. Motor Freight Lines, Inc., 17 La. App. 63,134 So. 317, the governing facts were similar to the facts in the case now before the court. In that case as well as in the present the road was level. I did not agree with the majority of the court in the Hanno Case, and explained why in a dissenting opinion.

In Thompson v. Bourgeois (La.App.) 146 So. 708, the plaintiff Thompson was driving on a frequented highway at night in a rain storm, in which the darkness was occasionally lit up momentarily by lightning. The automobile of the defendant Bourgeois was stopped in the road without lights, due to an accident. The road was level. In the Thompson Case it seemed to me that Thompson should have stopped, or moved forward in the darkness at such speed under the headlights of his own automobile that he would have stopped in time to have avoided running into thing ahead of him In the road. I so stated in a dissenting opinion, and cited decisions of the Supreme Court and Courts of Appeal which seemed to support my position.

In Holcomb v. Perry, 19 La. App. 11, 138 So. 692. The Court of Appeal, Second Circuit, cited with approval the opinion in the Hanno Case, but in a subsequent case, Safety Tire Service v. Murov, 19 La. App. 663, 140 So. 879, the same court held that the opinion in the case mentioned was not in harmony with the jurisprudence of the state on the subject, but did not refer to their recent decision in Holcomb v. Perry.

In a late case, O'Rourke v. McConaughey (La.App.) 157 So. 598, the New Orleans Court of Appeal held that the opinion in the Hanno Case was not in harmony with our jurisprudence on the subject. The Supreme Court refused to issue a writ of review in the Hanno Case, but did likewise in Safety Tire Service v. Murov, although the two opinions cannot be both correct in the matter of our jurisprudence on the subject.

The conflicting decisions of the Courts of Appeal cause uncertainty as to how cases should be decided in situations of that kind.

A decision of the Supreme Court, indicating as near as can be done the line of conduct which the driver of a motor vehicle should observe when driving on a frequented highway at night, when for any cause the driver becomes unable to see his way ahead on a level road, will, I think, be of substantial service.