
    John H. LANIER et al. v. HARTFORD ACCIDENT AND INDEMNITY COMPANY et al.
    No. 3969.
    Court of Appeal of Louisiana. First Circuit.
    March 25, 1955.
    Rehearing Denied April 22, 1955.
    
    
      Frank T. Doyle, Nicholas Masters, New Orleans, Reid & Reid, Hammond, for appellants.
    Ponder & Ponder, Amite, for plaintiffs.
    Jones, Waechter & Walker, New Orleans, for intervenor.
   ELLIS, Judge.

This is a suit by John H. Lanier and Elizabeth Williams Lanier, father and mother respectively of Preston Luke La-nier who was killed in an automobile accident on April 18, 1947 at approximately 12:30 P.M., as the result of a collision between the log truck which he was driving and a log truck belonging to the defendant, Hillery Simmons, and being driven by one Dermont Lambert, and a pick-up truck owned by the defendant, A. R. Bloss-man, Co., being driven by A. R. Tweedy who at the time was the Tangipahoa Parish manager for the Blossman Company.

Plaintiff charges the defendant with the following negligence:

“a. In attempting to pass a parked vehicle without ascertaining whether or not safe passage could be negotiated.
“b. In failing to accord converging traffic its proper side of the highway.
“c. In pulling out in front of converging traffic.
“d. In not having their vehicles under control sufficiently to enable them to stop behind parked traffic to enable converging traffic to safely pass.
“e. In failing to sound horn or other warning in passing traffic.
“f. That the first and second named defendants were negligent in attempting to pass an automobile on the upgrade of a hill without ascertaining that said passage could be safely made.
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“And, in the alternative only your petitioners show that if their son could be charged with negligence then and in that event that he was presented with a sudden emergency by traffic pulling into his traffic lane and that he chose the safest course and negligence cannot be imputed to him for electing between hazards and your petitioners further show in the alternative that in the event any negligence could be chargeable to their deceased son or imputable to them, then and in that event only that such negligence was the remote cause of the accident and the negligence proximately causing the accident and resulting death of petitioners’ son was the acts of negligence of both first and second named defendants in pulling into the eastern bound traffic lane or that lane being traversed by petitioners’ son, and your petitioners further show in the alternative that in the event their son was negligent in any respect then and in that event only that the first and second named defendants had the last clear chance of avoiding the accident and that second and third named defendants had discovered the peril of his automobile in front of them and said first and second named defendants irrespective of this discovered peril proceeded to attempt to pass the same on the upgrade of a hill with traffic converging upon them, consisting of truck operated by decedent fully laden with logs; * *

The Blossman Company, Inc. and its insurer, both defendants, specifically denied any act of negligence as charged in the plaintiffs’ petition and in the alternative plead contributory negligence on the part of the deceased son and driver of the log truck, Preston Lanier, in driving the truck at a fast and excessive rate of speed and not having it under proper care and control and in not maintaining the proper lookout.

The defendant Simmons specifically denied the acts of negligence charged to the driver of his truck by the plaintiff.

The Liberty Mutual Insurance Company filed a petition of intervention claiming the amount paid by it in a lump sum settlement of the compensation claim on behalf of young Lanier.

The case was duly tried before Judge Nathan B. Tycer who became ill and was retired prior to a decision in the matter. It was then submitted to Judge Warren W. Cornish upon the transcript of testimony and briefs and judgment was rendered in favor of each parent, plaintiffs herein, in the sum of $5,000 with interest at 5% per annum from date of judicial demand until paid. Judgment was further rendered in favor of the intervenor for the reimbursement of $2805 paid by it in settlement of the compensation claim of young Lanier.

It must be remembered that the Judge of the Lower Court who had tried the case and heard and observed the witnesses is not the Judge who rendered the decision. Therefore, we are in equally the same position as the Judge of the Lower Court who rendered judgment in this matter. We, as well as the Lower Court, must take a cold record and try to arrive at a fair and just conclusion in the matter.

From this judgment A. R. Blossman Co. Inc. and its insurer, Hartford Accident and Indemnity Company, have appealed. There was no appeal by Hillary Simmons.

Plaintiffs apparently base their prayer for an affirmance of the judgment of the Lower Court upon two grounds:

1. That the front left wheel of the Simmons truck at the time of the accident was a short distance over the center line of the road and that the Blossman truck was a greater distance over the center line and that the log truck being driven by the deceased, Preston Lanier, did not have a sufficient distance remaining in his lane of travel to avoid the collision ;

2. That an emergency was created by Simmons and Blossman in pulling out into the south or east bound lane of traffic in order to pass a parked vehicle in the north or west bound lane of traffic at a time when the log truck driven by Preston La-nier was approaching.

As a proper decision in this case is dependent upon the facts it is necessary that they be reviewed somewhat in detail.

It is shown that this collision occurred near the driveway leading to the home of one Bridges and according to the testimony Preston Lanier was driving a loaded log truck in an easterly direction and had reached the crest of a slight hill and was coming down the incline when the collision occurred. It is shown by the testimony of a civil engineer that from the crest of the slope to the driveway of the Bridges’ home was approximately 900 feet and from the crest of the hill looking east to a curve in the road was approximately 1500 or 1600 feet. It is also shown that there was an average incline of three feet per hundred feet going down this so-called hill. It is further shown by the civil engineer that the width of this gravel road in front of the Bridges’ residence where the collision took place was a little more than 20 feet wide from ditch to ditch.

It is shown by the testimony that just prior to the collision the truck of the defendant Simmons was being- driven by Lambert in a westerly direction on the gravel highway leading from the town of Tangipahoa, and was being followed by a pick-up truck belonging to the defendant, A. R. Blossman, Co., and driven by its manager Tweedy, and coming from the west were two loaded log trucks, both going to the same mill. Parked in the north or west bound lane of traffic near the driveway of the Bridges’ home was a Ford car. The driver of the Simmons log truck proceeding in a westerly direction came up behind this parked Ford truck . and saw the first loaded log truck being driven by one Jones approaching from the west and he stopped his truck. The Blossman truck then came up behind the parked Simmons truck and stopped. The loaded log truck driven by Jones proceeded to pass in the south or east bound traffic lane. It is from this point that the testimony is 'in conflict.

Plaintiff contends that as. soon as the Jones log truck had passed, both the Simmons and Blossman tracks started to pull out into the south traffic lane, causing Lanier to strike both trucks.

It is the contention of the defendants that they were on their proper side of the road and the loaded log truck driven by Lanier began to wobble or zigzag in the highway and he evidently lost control of the truck, striking both the motor vehicles of Simmons and Blossman. It is undisputed that after the vehicles collided, La-nier’s track went down the road some 90 feet where it crossed and went off the road on the north side in the ditch and struck a tree, resulting in Lanier’s death.

There is no dispute as to where the Simmons track was after the accident, that is, on its own side of the road, but it is contended that it had been over the center line a foot to a foot and a half and was knocked back on its own side of the road by the force of the collision. There is no dispute that the Blossman truck after the collision was headed in a northeasterly direction with its front end down in the-ditch and its rear end up on the road. As. to whether it was knocked to the left or the right, there is a direct conflict between the plaintiffs and defendants. The plaintiffs contend that the Blossman truck was. parked at an angle with its left front end protruding further out into Lanier’s south or east bound traffic lane and that the Lanier track struck it on the left front grill and fender and turned it to the right in a complete circle, whereas the defendants contend that the Blossman truck was parked on its side of the highway with its left portion somewhat nearer the center line and that Lanier lost control of his loaded log truck and it came zigzagging and wobbling down the incline, first striking the Simmons truck and then struck the Bloss-man truck on the left front fender and grill, knocking it to the left in a half circle.

The question presented, therefore, is whether the Simmons and Blossman tracks obstructed Lanier’s traffic lane by having a portion of their trucks across the center line.

The plaintiffs offered the testimony of Deputy Sheriff Gill who testified that he arrived at the scene of the accident approximately 45 minutes after it occurred and that, together with State Highway Patrolman Anderson, he investigated the collision by inspecting the scene and location of the vehicles. Together they made a report which was filled out by Patrolman Anderson and consists of three pages which is filed in the record. On this report the Lanier vehicle is #1, the Simmons empty log truck is #2, and the Blossman pick-up truck is #3. The report, under the heading “Other Violations” in the handwriting of Trooper Anderson states: “#1 from physical evidence as seen was driving too fast for conditions,” The report further shows that Vehicle #2, the Simmons truck, sustained damage to the “left front fender and tire and left rear tire.” Vehicle #3, being the Blossman truck, sustained damage to the “left front.” The diagram of the positions of Vehicles #2 and #3' as shown on this report places a parked car near the shoulder on the north traffic lane. Behind this car, apparently in a position to pass the parked car was Vehicle #2, the Simmons truck, and to the rear, behind the Simmons truck, is shown the Blossman truck. Both the Simmons and Blossman trucks were on their proper side of the road in the diagram as prepared right after the accident by Trooper Anderson and Deputy Sheriff Gill. This diagram further shows the Blossman truck as being knocked to its left in a half circle so that the front end was facing slightly east of north.

Under the heading of “Describe What Happened” we find the following in this report:

“Veh. #1 traveling E on Spring Creek road meeting #2 followed by #3 traveling W. A car was parked in #2’s lane and attempted to pass parked car but saw apprpaching trk & reversed gear and came to a stop in rear of parked car. #2 and 3 was on or near center of Roadway when veh attempted to pass parked car #1 applied brakes & lost control of veh. #1 hitting #2 & 3 causing #3 to turn half round & into ditch #1 traveled approx. 18 ft. & ran into ditch & logs shifted on load causing death of subject.”

This suit was filed on December 23, 1947 and tried on June 2, June, 27 and November 14, 1949. On the trial Deputy Gill produced a diagram which, when reading his testimony, one would think was made shortly after the accident for he testified that he drew the diagram of the scene of the accident from the physical facts that he'found when he got there. When cross-examined as to when he drew this diagram he answered: “Sometime later”, and was asked: “How much later?”, and he answered: “Good bit.” Counsel, not being satisfied with this answer, asked whether it was one day, two weeks, or three months and his answer was, “Several months.” His testimony clearly indicates that he intended to give the impression that the diagram was drawn a reasonably short time after the accident. When Trooper Anderson was questioned about this diagram the questions and answers were as follows:

“Q. We are trying to fix the time when you and Mr. Gill got together. A. We got together when it was supposed to be tried before.
“Q. About a month ago?. A. I don’t know. It was the last time the witnesses got together.
“Q. It was about March 31, 1948, that it was set for trial before. In other words, it was nearly two years after this accident occurred that you and Mr. Gill got together and you made up your mind that you made a mistake on the report ? A. I had no other occasion to bring it up.”

The diagram which Gill and Anderson prepared some two years after the accident shows the Simmons truck and the Blossman truck as being over the center line in the traffic lane of the Lanier log truck. This is clearly their idea of where these trucks were at the moment of the collision and, of course, both of them were many miles away from the scene at that time. Further, both Gill and Anderson testified that the Blossman truck was knocked completely around to its right rather than as shown on the diagram and contrary to the testimony of Tweedy who was sitting in the truck at the time it was struck, and contrary to their own report which they made at the scene shortly after the occurence. Both base their testimony as to the position of the Blossman and Simmons trucks at the time of the accident on the tracks which they say they traced from the Lanier truck back to the point of impact.

The testimony shows that the Simmons truck first stopped in order to let a log truck driven by Jones pass, and Blossman stopped behind the Simmons truck. The Jones log truck passed safely by in the south traffic lane. Neither Gill nor Anderson mentioned the tracks made by this truck as distinguished from the tracks they contended were made by the Lanier truck. The road on which the accident occurred was graveled and very dusty and dry at the time. Naturally the highway would be somewhat scuffed up at the point the Lanier truck struck the Simmons and Blossman trucks, but as to any unusual marks or disturbances on the south side of the center line of the road, it would be almost impossible for Gill or Anderson or anyone else to say that such marks were not made by the Lanier truck rather than the Simmons and Blossman trucks, as both these trucks were knocked away from the center line.

The report which Gill and Anderson made immediately after the accident must be given greater weight than testimony contradictory thereto some two years after the accident. As to whether Gill’s testimony immediately after the wreck should be accepted or that of some two years afterward, we will let his own testimony given on the trial speak for itself. In testifying as to when the accident happened and whether a report was in his handwriting, he stated:

“No. I’ll be frank. I don’t know if it was in the afternoon or in the morning. It had been so long and we worked wrecks every week and I was called to the scene. I think I was there about 45 minutes after it happened. They had just removed Mr. Lanier.”

As to Gill and Anderson’s testimony we must accept their findings immediately after the accident at the scene rather than testimony two years later as to what they thought had happened at the time, materially different from the written report.

It might be well to state that Anderson did testify that he only wished to change the report in respect to the Blossman truck being knocked all the way around in a circle to its right rather than half around to its left as shown in the report. He stated that the rest of the report stood as far as he was concerned.

These accident reports are made by skilled investigators such as sheriffs, deputy sheriffs and state troopers. Those men are specially trained to investigate automobile accidents and are specially trained to look for physical facts and evidence that might reflect as to who was at fault in the accident. In this case the accident report as found in the record was made up by the deputy sheriff and the trooper just a short time after the accident and we have every reason in the world to believe what they stated in that report to be a true reflection as to what they found.

These two officers predicate this change of testimony from their report due to the fact that one was giving information and the other was writing it down and that one or the other got mixed up on east or west. They further predicate this change of this testimony on the physical findings which they claim they discovered at the scene of the accident but that the report is absolutely silent of and that is a fact that when the Blossman truck was turned counterclockwise to the left, that it made tracks in the gravel road to indicate the way it had turned. It appears to us that if they had found these tracks or marks on the gravel road which they claim they found at the time they investigated the accident, that being such an important factor, that they would have indicated that fact on their report but they did not do so. Another physical factor which appears to be important is the fact that the Blossman truck according to their testimony was hit on the left front grill and fender by a tractor and log trailer of the plaintiff and that the entire right side as well as right front of the Blossman truck was not damaged at all. If the Blossman truck had been hit by this large log trailer on the left front and turned completely around counterclockwise, the right front as well as the right side of the Blossman truck would have been likewise damaged in the impact, but according to the testimony the right front and right side of the Blossman truck was not damaged which further indicates and proves that the Blossman truck was hit on the left front by this log truck and spun to the right or clockwise and not as stated by the two officers in their testimony. It may be well to remember that the Blossman truck, even though we are referring to it as though it were a truck, was only a little pick-up truck which is a very light vehicle in comparison to a log truck and trailer.

The plaintiff offered the testimony of John Jones who was driving a loaded log truck on the same road preceding the Lanier truck. He testified that his truck was running hot and that he had asked Lanier to follow him in to the mill. As he approached he saw the Model A. Ford automobile parked on the side of the road and just beforfe he passed, the Simmons truck pulled up and stopped 'behind this parked car, and while he was passing the two vehicles the Blossman truck pulled in and he stated “cut out.” He states that the Blossman truck was being operated at about 60 miles an hour. This witness stated that the Blossman truck “pulled up and got out into the middle of the road toward me.” Of course, this is impossible as he would have had a wreck himself due to the width of the road and his truck. Fie testified that he passed on by and looked in his mirror and the last he saw of the Blossman truck “he was pulling out behind the Simmons truck,” and “pulling out in front of Preston.” This witness testified that the dust came between him and the Blossman truck and finally restricted his vision. He did not see Preston Lanier coming behind him nor hear the wreck, and in our opinion this is vital to his testimony. If he was looking in his rear view mirror, there was a distance of 900 feet from where Simmons’ truck and Blossman’s truck were parked to the top of the incline, and he was bound to have seen the Lanier truck unless the dust obscured his vision, which he did not say. Further, Simmons’ driver testified that the Lanier, truck was so close behind the Jones truck that he only had time to start to pull out to pass the parked car when he saw the Lanier truck coming down the incline and he realized that he would not have time to pass so he stopped. It is further shown that the Simmons’ truck rolled back until the coupling pole struck the Lanier truck which, of course, would place it further toward the north than where it was when it stopped to allow Lanier to pass. It is inconceivable that the driver of the Simmons empty log truck would stop his truck in the Lanier lane of traffic under the conditions or that the driver of the Blossman truck would attempt to pass the Simmons truck while it was attempting to pass the parked automobile. It is Lambert’s testimony that he was driving the Simmons truck, that he pulled up behind the parked Ford in order to allow Jones to pass, that he noticed the Bloss-man truck drive up behind him and as he moved up to go around the parked car he saw the Lanier log truck coming toward him so he stopped in order to let it pass. He did not see or notice the Blossman truck until after the accident, therefore, he does not know where, it was at the time of the accident. He only knows where his truck was and it is his positive testimony that he was on his side of the line, and that as the Lanier truck approached him he saw it start to zigzag or wobble as if it was out of control. It-continued to do this and struck the left front wheel and fender of this truck, continued on and struck the Blossman truck.

Tweedy, driver of the Blossman truck, testified that he pulled up behind the Simmons truck and did not notice the Jones truck pass, but that he saw' the Lanier truck coming down the hill in a wobbling or zigzagging fashion and saw it strike the Simmons truck and it struck the left front fender and grill of his truck, knocking it around to -its right in a half circle. It is the testimony of both Lambert and Tweedy that they were on their side of the road and if the Lanier truck had not gotten out of control it could have passed as did the Jones truck.

Lambert and Tweedy were the only living witnesses to the actual accident and their testimony is corroborated by the report which Anderson and Gill first made, and is entitled to greater weight than the testimony of Anderson & Gill which differed with the report.

The driver of the Blossman pickup truck states that when he stopped in the back of the Simmons, truck that his motor died and that he never -did start his motor, and for that reason we believe that when he stopped, his truck did not move again until after the impact. It must be remembered also that the highway on which this accident occurred is a gravel road approximately 20 feet wide and that from the crest of the so-called hill which is west to the scene of the accident, is approximately 800 to 900 feet to the place where the accident occurred and that the highway is straight for a distance of approximately 1,600 to 1,800 feet and that the collision took place approximately in the center of these two points. This is not a hill in the true sense but is only a slope of a three per cent grade. The Jones logging truck which was traveling ahead of plaintiff’s truck passed these two standing vehicles without any trouble at a time when plaintiff’s truck was just about coming over the crest of the so-called hill. It may be possible that the Simmons truck might have moved because there is some testimony in the record that it rolled back and bumped into the Blossman truck before the impact. If that is true then there would be approximately the same clearance in the road as when the Jones truck passed but the testimony in the record indicates that the plaintiff’s truck started zigzagging or appeared out of control when it was coming down the road. The evidence tends to show that the plaintiff’s truck was traveling at an excessive rate of speed with a load of logs and it might be due to that fact that plaintiff’s truck went out of control due to the excessive speed and heavy load on the down grade and then bumped into the Simmons and Blossman trucks. The speed of the plaintiff’s truck is indicated further in that after striking these two trucks, plaintiff’s truck proceeded down the highway and according to the report as found in the record it ended up approximately ninety feet in the back of the Blossman truck running into a tree and causing the fatal accident.

Taking into consideration the width of the type of trucks involved in this accident, that is particularly the plaintiff’s vehicle, and the Simmons truck which were identical, insofar as the size and the width of the road were concerned, there would not be too much extra space between the trucks as they met on the highway. For that reason it would appear that if a truck was stationary and one is moving, that the driver of the moving vehicle should have his truck under such control that he can safely pass in the space provided. In this case it appears that the plaintiff’s truck was coming at a very fast rate of speed and out of control and for that reason we believe that the proximate cause of the accident was the negligence of the driver of the loaded log truck, Preston Lanier. Furthermore, we do not believe that the plaintiffs in this case have proven their case by the preponderance of the evidence under the circumstances as prevails here due to the change of testimony of the deputy sheriff and the state trooper.

There was no emergency created by Lambert or Tweedy. As to why Lanier’s truck went out of control can not be determined from the evidence in this case but if the Simmons and Blossman trucks were on their side of the highway, which the plaintiff has failed to show was not a fact, then the collision was not due to any act of negligence on the part of either, but apparently due to the negligence of the deceased, Preston Lanier.

For the above and foregoing reasons, it is ordered that the judgment of the District Court be reversed and plaintiffs’ suit dismissed at their cost.

TATE, Judge

(dissenting).

I regretfully must differ from my conscientious brethren.

In my opinion, the decision of the District Court is supported by the overwhelming preponderance of the sworn evidence; and in arriving at a contrary result, we are substituting merely our own opinions for this sworn testimony. We are further committing error of law in allowing a routine and perhaps unconsidered accident report greater weight than the sworn testimony at the trial of the police officers who prepared this same report.

In an opinion ably summarizing the evidence, .the District Court found that the defendants’ trucks going uphill had pulled out across the center of the highway to pass a car parked in their lane, and into the path of decedent’s log truck which had come over the crest of the hill. The Simmons’ truck attempted to back up, and the Blossman’s truck motor had stalled. The District Court concluded that the accident was caused by the defendant trucks’ negligence in attempting to pass the parked vehicle on the upgrade of a hill'and in the face of opposing traffic, LSA-R.S. 32:233, and that if decedent lost control of his truck immedately prior to the accident, it was due to the emergency created by the negligence of defendants’ trucks in being passing or stalled immediately in his path on his portion of this narrow gravelled road.

I believe these conclusions are supported by the following evidence:

1. The sworn testimony of Louisiana State Trooper Anderson and Chief Deputy Sheriff Walter Gill, investigating officers who arrived on the scene 45 minutes after the accident, that: (a) the point of impact, as instanced by broken glass, skid marks of both decedent’s and. the Blossman truck, and other physical accident was from eighteen to thirty-six inches over the center of the highway, and in the lane of traffic reserved for decedent’s oncoming vehicle and in decedent’s path; (b) that the tracks of the Lanier (decedent’s) truck were clearly discernable in the gravel road, and that at point of impact the outer such skidmarks were from eight to twelve inches from the steep three feet deep ditch, that these skidmarks began at the scene of the impact and were to the extreme right (ditch-side) of the Lanier truck’s lane of the road continuing on from there across the road to the point where the Lanier truck was crashed against the tree.

2. The sworn testimony of (á) Doyle Bridges (living at the scene of the accident, whom the noise of the collision ■ attracted immediately afterwards) corroborating that the glass of the collision was in decedent’s lane of traffic and that even after the impact the Simmons truck was at the center’of the road; of (b) Martin McKnight (a truckdriver who arrived at the scene of the accident shortly after-wards) to the same effect and to the effect that he had examined the skidmarks made by the Blossman truck from the point where it landed back to the point of impact and from them deduced that the Blossman truck was from one and one-half to two feet in decedent’s lane of traffic at the time of impact, and that the tracks made by the Lanier truck were on its extreme right-hand side of the road approximately one foot from the ditch at the time of impact; and of (c) Charles Graves, an automotive shop foreman called to the scene of the accident by the Blossman company, corroborating this testimony, that the Lanier truck track marks showed decedent had pulled across to his side of the • road as far as he could without falling into the ditch at the point of impact, that the Bloss-man truck tracks showed that it was sticking out a couple of feet into decedent’s lane at point of impact and was dragged around to where it landed in the ditch.

I do not believe it is within the province of this Court to substitute its opinion that tracks and physical evidence such as described by these five apparently disinterested witnesses could not have been made or discerned on the gravel road in question, for their sworn testimony that such tracks were there and discernible. This is to substitute mere speculation on our part for sworn testimony of witnesses— sworn testimony which is not seriously disputed by contrary evidence or even by searching cross-examination. To hold that such tracks could not possibly have been made by the desperate and perhaps terrorized application of brakes on this heavy logtruck, does not appear to me to be so infallible an assumption as for us on the the strength thereof to characterize as coldblooded perjury the testimony of Trooper Anderson, Deputy Sheriff Gill, and Messrs. Bridges, McKnight, arid Graves.

This sworn testimony is not conjectural and positively places by sworn testimony the point of impact as over in decedent’s portion of highway.

The majority’s decision of decedent’s contributory negligence is also based upon decedent’s proceeding at too great a rate of speed under the circumstances and not having his truck under control. This latter is based upon decedent’s truck swaying on the road at the time of the accident according to the testimony of Lambert, driver of defendant Simmons’ truck. Lambert admits having pulled out to pass the parked truck after the first oncoming (the Jones) truck had passed, and was at the center of the road and judged the Bloss-man truck was a little further out past his own truck starting around him in the path of oncoming vehicles (although under cross-examination by his codefendant’s counsel, he stated that this was based not on direct observation but the greater impact received by the Blossman truck). Lambert judged that the two oncoming trucks were proceeding at a speed of forty to forty-five miles per hour. He did not see decedent’s oncoming truck until he had pulled out to decedent’s lane of traffic after the first truck had passed, and decedent’s truck did not start zigzagging until sixty feet from the point of impact! (Tr-89). It would appear to me that if decedent’s truck went out of control, it was because faced with the sudden emergency created when two trucks pulled out into his lane on this narrow road.

It is interesting that this hostile witness too, like the five disinterested witnesses so far listed, testified that the Blossman truck made positive tracks going counterclockwise from point of impact to the point where it ended up facing into the ditch. While the majority feels that this could not be so, and disregards the explanation of the investigating officers that the report incorrectly showed the Blossman truck as going clockwise due to clerical error; and while whether the Blossman truck went clockwise or counterclockwise is immaterial to our decision of this matter; I feel that the holding contrary to this sworn testimony because more probably the truck might have gone clockwise is unwarranted.

The majority result further disregards the testimony of John R. Jones, who was driving the truck immediately preceding decedent’s truck, which the drivers of defendants’ two trucks place as having passed immediately before the accident. Jones testified that due to a stopped radiator he had requested decedent to drive immediately behind him in case he had motor trouble and that they were going about twenty to twenty-five miles per hour. He testified ing that he remembered passing the truck parked protruding into the other lane of traffic, that he saw the defendant Simmons’ truck pull up and stop behind it just before he (Jones) passed the scene, and that the Blossman pick-up truck pulled in just as he (Jones) passed and then cut out, driving at a very fast rate of speed Jones estimated at sixty miles per hour. Jones testified positively that in his mirror he saw the Bloss-man truck pull out into the middle of the road, and that then a “dust cloud” came between him and the Blossman truck (Tr-36). As testified by Jones, “the dust gradually came between us” (Tr-36), or ■“the dust had settled between us” (Tr-41), or “A dust . cloud came between us” (Tr — 42) ; and therefore he did not see the actual impact and did not in fact know that an accident had happened until he returned to the mill, although when subsequently he noticed the Lanier truck was no longer following him, he assumed something must have happened. (Both defendants’ drivers admit the road was dusty.)

■ In the face of this sworn testimony of Jones and of these at least .five other disinterested witnesses, the majority accepts without cavil the testimony of A. R. Tweedy, Tangipahoa Parish Manager for A.' R. Blossman, Inc., and driver of the Blossman pick-up truck, that he had stopped on his own side of the road before the accident. While this witness was verbally more agile than the other witnesses and perhaps better educated, I do not feel that this imparts to his testimony greater accuracy or disinterestedness; and taking into consideration that this serious accident happened within split. seconds, while not necessarily, doubting Tweedy’s sincerity, it seems to me entirely conceivable that he did not actually know on what portion of thfi road his motor stalled and when he had ducked out after the Jones truck had passed, only suddenly to realize that a second truck was closely following Jones on that dusty road.

That the heavily loaded Lanier log truck continued 90 feet on the gravelled downgrade after slight impact with the other trucks is not to me indicative of any great speed.

To reach its conclusion the majority opinion placed great reliance upon the routine accident report completed by the investigating officers after the accident. In my opinion, to substitute this routine accident report for their own sworn testimony was error of law.

No authority is quoted for the presumption that hasty sketches and comments on roughly drawn and written routine reports are to be accorded such great weight as to outweigh their sworn and far more comprehensive testimony. In fact, from an examination of the sketch of the accident, with the road approximately %s inch in width, and each vehicle roughly sketched as %e inch wide, my appreciation of this sketch is that the Blossman truck is %2 inch from its side of the road, the Lanier (decedent’s) truck %2 inch from its side of the road, and if the Blossman truck is not over the center line, this could be definitely measured only by calipers. It appears to me extremely doubtful that this rough sketch was meant to be a definitive recapitulation of the accident. Further, that the investigating officers in deference to Tweedy’s explanations stated on this report that the Blossman vehicle may have been “on or near” the center of the road, does not to me indicate any serious reason to question their own sworn testimony that, despite Tweedy’s opinion, from physical evidence they themselves placed the point of impact with Tweedy’s truck "on” the center of the road. To disregard the officers’ finding that the Blossman and Simmons truck “did not have right of way” under “violations indicated” (thus indicating, that they attempted to pass in disregard of their right of way), but to accept their on the spot opinion that decedent “was driving too fast for conditions” appears to disregard the fundamental principle that it is the function of the courts, not of the investigating officers, to decide whether the speed involved constituted negligence which was a proximate cause of the accident in question.

'Whether the' speed of the decedent’s truck was 20-25 miles per hour as testified by Jones who had preceded it for several miles, .or whether it was 40 miles per hour as was the opinion of the drivers of defendants’ trucks who glimpsed it for several split seconds before the accident — in my opinion, the proximate cause of the accident was not any speed of the Lanier truck, but the negligence of defendants’ trucks in (after the Jones truck had passed, unaware that Jones was closely followed by Lanier) cutting out suddenly onto the decedent’s lane of traffic and immediately in his path, causing him to lose control of his truck approximately sixty feet from the point of impact.

For the above reasons, while I sincerely regret differing from my esteemed arid conscientious brethren and their well-considered conclusions, I must respectfully dissent.

Rehearing denied.

TATE, J., dissenting.  