
    Jake ALLO, Individually and on behalf of his minor son, Vic Allo, Plaintiffs-Appellants, v. Kassie B. JEFFERSON et al., Defendants-Appellees.
    No. 12904.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.
    En Banc. Rehearing Denied July 7, 1976.
    
    John F. Tooley, Jr., Gretna, Stephen M. Little, Metairie, Hargrove, Guyton, Ramey & Barlow by Thomas J. Wyatt, Shreveport, for plaintiffs-appellants.
    Blanchard, Walker, O’Quin & Walker by Jerald L. Perlman & Don Weir, Jr., Shreveport, for defendants-appellees.
    
      D. H. Perkins, Jr., Asst. U. S. Atty., Shreveport, for intervenor-appellee United States.
    Before BOLIN, PRICE and MARVIN, JJ-
    
      
       Bolin and Hall, JJ., both dissented from refusal to grant rehearing.
    
   MARVIN, Judge.

Plaintiff, Vic Alio, then a minor serving in the Army, was a guest passenger riding behind the operator of a motorcycle when the motorcycle and a truck collided on a rural highway between Bellvue and Benton about 200 feet east of the Bayou Bodcaw bridge in 1965. After a trial in 1974, and from a judgment rejecting his demands for personal injuries, Alio appeals. We affirm.

Plaintiff sued the driver of the truck and the truck owner’s liability insurer. Testimony concerning the liability issues was given by Alio, by the driver and by a guest passenger in the truck, and by an eyewitness (Miller) who was not otherwise involved in the collision. Miller was standing with still another person (Roberts) near the scene (“across the street” as he described it). The truck was a tractor-lowboy trailer of conventional type used in oil field work in this area. It was not loaded at the time of the accident, about 4:00 p. m. on a clear, dry October day. No other traffic was involved.

The highway near the scene is a blacktop state highway. Once it enters the Bayou Bodcaw bottom lands it is relatively straight, with shoulders limited to about 2 feet for a distance of approximately 400 feet approaching the bridge. The highway extends through the bottom lands as a “dump”, with water from the Bayou on each side of the highway, which the witnesses called “deep”. Both vehicles were proceeding westerly on the dump, approaching the bridge.

The motorcycle was on the left side and left shoulder of the highway, traveling at a speed of 15-20 mph as estimated by Alio in a deposition in 1967. Alio and his driver were riding in this fashion looking at turtles in the water to their left when the truck rounded the curve about 400 feet behind them. Jefferson and his guest passenger saw the motorcycle at this time and kept it under observation.

The truck was then traveling at about 40^45 mph but reduced its speed to an estimated 25-30 mph upon seeing the motorcycle. The posted speed limit was 60 mph. The truck at all times remained in its proper lane.

Allo’s memory of the accident at best, was sketchy. At least three times on cross-examination his testimony at the trial was impeached or his memory was otherwise refreshed from his 1967 deposition. He did not testify to any facts which lead us to conclude that the truck driver breached any duty towards the motorcycle riders.

After seeing the motorcycle, Jefferson blew the truck’s horn one or more times. The eyewitness Miller testified the horn blew several times, first when a distance of 30-40 yards separated the truck and motorcycle. The guest passenger and driver of the truck, and the eyewitness generally are in agreement that the motorcycle and truck were traveling at about the same speed, and were “about even with” or were “4-5 feet from” each other when the motorcycle veered almost perpendicularly from its left lane immediately into the front of the truck. The driver and passenger in the truck testified the driver then applied his brakes and steered from the right lane as far as he could go on the limited width of the road shoulder. The eyewitness corroborates this. The driver and passenger testified that when the motorcycle cut in front of the truck, the driver blew the truck horn. The truck driver’s attempt to avoid the accident was unsuccessful and the collision occurred.

From our review of Allo’s testimony, and particularly his admissions as to his statements in the 1967 deposition, Alio did not hear the truck horn until after the motorcycle verred into the path of the truck. The motorcycle driver did not testify and we can only infer his audio perception from the circumstances. Either he did not hear the horn or he reacted too late and without properly observing the source of the horn before veering into the path of the source. Under either inference, the motorcycle driver gave no indication beforehand that he was going to veer into the path of the truck, and we find that it was solely the negligence of the motorcycle driver which caused the accident. This finding results in the affirmance of the judgment below and makes it unnecessary that we agree with the trial court’s reasons for judgment or for us to make other findings as to contributory negligence and assumption of the risk by plaintiff, as did the trial court.

The trial court found the truck driver negligent in attempting to pass to the right of the motorcycle “upon seeing the dangerous position of the motorcycle ahead and the unusual conduct of the driver and passenger.” Under whatever theory or label, the defendant’s liability is founded upon his seeing or being under a duty of seeing the plaintiff and unreasonably acting or failing to act so as to cause the injury to the plaintiff. Considering all of the circumstances, the traffic conditions, nature and location of the highway, the motorcycle and its occupants remained in a relatively safe position from the time the truck driver saw them until the motorcycle drove into the path of the truck. The accident was not inevitable until the motorcycle drove almost perpendicularly from this relatively safe position into the path of the truck. The truck driver here had no indication that the motorcycle was not aware of the truck’s approach. During the entire time the motorcycle was being observed by the truck driver, the motorcycle remained far to the left side and shoulder of the road at a relatively slow rate of speed. The truck driver sounded his horn, slowed and purposely drove on his far right side of the road during the approach. We do not find that he breached any duty owed the motorcycle riders. See and compare: Daigre v. Schneider, 255 So.2d 206 (La.App. 1st Cir. 1971); Klibert v. Brewer, 301 So.2d 889 (La.App. 4th Cir. 1974), writ denied 305 So.2d 131 (La.1974); Motors Ins. Corp. v. Boling, 262 So.2d 156 (La.App. 3d Cir. 1972); Dixon v. Aetna Casualty Company, 256 So.2d 474 (La.App. 2d Cir. 1972). We need not agree with the trial court’s findings with respect to the motorcycle guest passenger.

For the reasons assigned, the judgment rejecting plaintiff’s demands is affirmed.

Affirmed.

BOLIN, J., dissents with written reasons.

BOLIN, Judge

(dissenting).

In his written reasons for judgment the trial judge stated:

“ . . . The plaintiff was a passenger on a motorcycle riding behind the driver, Mr. Lyle J. Brault. They were both engaged in looking for turtles in the ditches on each side of the road. At this point the road was dry, straight and level, it being a two-lane black-top road with ditches on each side. The plaintiff testified that Lyle J. Brault pointed to the ditch to the left and then drove the motorcycle into the left lane of the highway and reduced his speed to about 15 to 20 miles per hour and both were engaged in watching the ditch as they traveled down the highway. At this point he heard a horn blow and the driver swung back to the right side of the road where the collision resulted.
“The defendant, Kassie B. Jefferson, driving a trailer-truck headed the same direction as plaintiff was traveling’, saw the motorcycle ahead proceeding on the left side of the road. At this point he sounded the horn and continued on after slowing his speed. As defendant began to go past the motorcycle, the motorcycle suddenly cut back into the right hand lane and the collision resulted before he could avoid the accident and even though he again sounded his horn.
“Considering the above facts, it is my opinion that defendant, Kassie B. Jefferson, was negligent in attempting to pass to the right of the motorcycle upon seeing the dangerous position of the motorcycle ahead and the unusual conduct of the driver and passenger. It is also my opinion that the plaintiff, Vic Alio, was actively engaged with the driver in the distracting maneuver of looking into the ditches while on the wrong side of the road, that he heard defendant’s horn but failed to warn the driver of the motorcycle of that fact. Such independent negligence on the part of plaintiff was a contributing cause of the accident. Additionally, plaintiff assumed the risk of the consequences of such conduct.

I think the weight of the evidence supports the conclusion that the truck driver was negligent. However, I disagree with the finding of the lower court that Alio, the guest on the cycle to the rear of the driver, was contributorily negligent or assumed the risk. Assumption of risk and contributory negligence are special defenses which defendants have the burden of proving. There is no evidence in the record to support these special defenses.

Alio received serious injuries in the accident and I think the judgment should be reversed and plaintiff should be awarded a substantial sum for his personal injuries.

I respectfully dissent. 
      
      . Also pertinent here is plaintiff’s contention that the doctrine of last clear chance or discovered peril should apply to impose liability.
     