HUTCHESON, Circuit Judge.
The complaint for death damages resulting from an automobile collision in a fog was in two counts. The first count charged negligence, the second maintenance of a nuisance. The gravamen of both counts was that: for a long period of time prior to the injury, defendant had permitted the discharge from its plant into an open drainage ditch and thence into a canal along the side of the highway of large quantities of very hot water with the result that in the cool of the evenings and early mornings they created dense and heavy fogs immediately above the paved highway; and that plaintiffs' intestate, driving along it at about 7:15 on the morning of March 4, 1940, with his vision wholly obscured on said occasion by said dense and heavy fog and cloud so that he could not, and did not, see it, had run into and against a truck which had been overturned on the shoulder of the highway.
The defendant, admitting that at the time plaintiffs' decedent came to his death there was a dense fog over the highway which wholly obscured the vision of all persons driving vehicles thereon, alleged that the death was caused by the decedent's own contributory negligence in driving into the fog at a rate of speed such that he could not stop within the range of his vision.
Tried to a jury, while the evidence was conflicting as to whether the heavy
Defendant has appealed, assigning numerous errors; that a verdict should have been instructed for it because (1) the evidence failed to show defendant was guilty of negligence proximately causing the injury and (2) that it showed contributory negligence as a matter of law; that the verdict was so large in amount as to evidence passion and prejudice; and that the court had erred in the admission and rejection of evidence and in giving and refusing instructions.
Here, not waiving any of its points, appellant vigorously urges upon us (1) that the fog was not due to any negligence of defendant, but if it was, the fog was merely a condition and not a proximate cause of the collision, and (2) the deceased was himself guilty of contributory negligence.
Since we are quite certain that but for Slade's contributory negligence, the injury would not have occurred and that defendant should, therefore, have had an instructed verdict on this ground, we find it unnecessary to consider the other points appellant urges upon us. It is settled law in Louisiana that one entering a fog, such as the one pleaded and testified to here, must stop until sure of his way, or if he drives into it, he must proceed at such a speed as that he can stop the car in the distance within which he can see objects in his way. It will not do for such a one to say, as here, that he was driving 20, 15 or even 10 miles an hour. The evidence establishes that in the fog he did not see and could not see the object he ran into within the distance within which he could stop his truck, but more than that, it shows that, fully warned by the fog in the road, by Greer's blinking his lights at him and by Greer's disappearance in the fog, he took the hazardous course not of turning off onto the shoulder to stop, but of trying to drive around the cars in the road by using the shoulder when in the fog there was no way by which he could determine whether other cars were parked there or whether there were other obstructions in his way. That Slade drove into a dense fog where he could not see his way and was the author of his own death, both the pleadings and the evidence leave in no doubt. Plaintiffs pleaded that "the vision of said Slade was wholly obscured on said occasion by said dense and heavy fog and cloud, and in such fog or cloud he was unable to turn the truck toward his right or left and avoid running into the overturned truck, and was unable to stop the truck in sufficient time to avoid a collision and head on crash with the overturned truck." The evidence establishes that this was so. Under these undisputed facts it will not do for plaintiffs to plead and claim that in driving as he did, Slade was in the exercise of due care. For it is settled by a long line of Louisiana cases
HOLMES, Circuit Judge (dissenting).
I cannot concur in the majority opinion in this case without consciously invading the province of the jury. This is true because I think there was substantial evidence to support the verdict and all the findings of fact implicit therein.
The issue as to contributory negligence depends upon direct and circumstantial evidence. The direct evidence consists of the testimony of two eye witnesses, one of whom said that Slade was driving not more than ten miles per hour, the other twenty miles, when he met his death.
Under the evidence, different inferences might be drawn by fair and reasonable men as to the density of this fog and as to whether it was negligent to move within it at a speed not exceeding ten miles per hour. The district court did not err in refusing to decide, as a matter of law, that Slade was negligent in proceeding into a thin fog that suddenly became dense after he had traveled a short distance.