Opinion

Herrin v. Perry

  • 254 La. 933
  • 228 So. 2d 649
Court
Supreme Court of Louisiana
Filed
Dec 19, 1969
Status
Published
Author
Summers
On the bench
Hamlin, Summers, McCaleb, Tate, Appeal, See, App, Fournet, Barham, Sanders
Cited by
18 cases
Authority
More cited than 5.0%

The opinion

SUMMERS, Justice

(concurring in part and dissenting in part).

In my view Luerine B. Perry and her husband, David Perry, individually and on behalf of their twenty month old daughter, Nadine Perry, should recover against the Department of Highways and its liability insurer.

The employees of the Department of Highways were negligent in parking the truck too near the curve and in partially obstructing the eastern lane of travel. In doing so they created a hazardous condition, *961 and when the Herrin and Perry vehicles came upon the scene Mrs. Perry was confronted with a sudden emergency, and her actions were not negligent.

Under the doctrine of sudden emergency, one who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently, and upon reflection, may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence. Dane v. Canal Insurance Company, 240 La. 1038 , 126 So.2d 355 (1961).

Rehearings denied in Nos. 49579 and 49580.

FOURNET, C. J., and McCALEB and BARHAM, JJ., are of the opinion a rehearing should be granted.

SANDERS, J., concurs in the denial of a rehearing and assigns written reasons.

SANDERS, Justice (concurring in denial of rehearing).

The only application for a rehearing was that of the Department of Highways and its insurer. I subscribe to the denial of a rehearing.

I am convinced the Highway Department employees were guilty of negligence in parking their truck on the highway during the rain break, when it was practicable to eliminate the traffic hazard by parking the truck elsewhere. The employees’ conduct violates both the Highway Regulatory Act (LSA-R.S. 32:141) and the rules of the Department itself.

The circumstances of the collision are difficult to reconstruct. I am convinced, however, that the obstruction of the highway created a sudden emergency when the approaching driver, after coming around the curve, was confronted with the passing vehicle. The collision resulted. Hence, I am of the opinion that the Court properly held the Highway Department and its insurer.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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