GLADNEY, Judge.
J. D. Sullivan, his son, A. E. Sullivan, and John Buckholt have instituted this suit for recovery of damages against Hartford Accident & Indemnity Company, the liability insurer of Clyde G. Parker. In a companion suit, Parker et al. v. J. D. Sullivan, 155 So.2d 437, Clyde G. Parker and his collision insurer seek to recover damages sustained by Parker's automobile. The case was tried on its merits with judgment rendered rejecting the demands of claimants herein. From the decree plaintiffs have appealed.
The plaintiffs herein suffered personal injuries when their automobile struck the rear of Parker's automobile which was stopped on a hillside on the Myrtis-Texas Line Road in the northwest portion of Caddo Parish, Louisiana, the accident occurring about 3:30 P.M., September 5, 1962. Shortly prior to the occurrence of the accident Clyde G. Parker, a deputy sheriff residing in Rodessa, Louisiana, received a telephone call reporting an overturned automobile and that the driver of the vehicle could not be located. Parker proceeded to the scene of the accident, surmising from experience that the driver might have been thrown from the vehicle or pinned under it. It was raining as he left Rodessa. He testified he turned on his parking lights which automatically operated additional red warning lights on the front and rear of his automobile with which it was equipped as a safety measure. Parker's car was maintained by the Caddo Parish Sheriff's Department, and was an authorized vehicle for Parker's use as a deputy sheriff, although owned by Parker himself. Parker arrived at the overturned automobile about 3:30 P. M. Rain was still falling and continued for some time.
At that point the highway runs in an east and west direction and asphalt topping had recently been applied to the surface of the highway. The shoulders of the road had not been reconstructed or built up, being several inches lower than the edges of a new asphalt topping, and were ungraded and narrow. Engineers' plats and pictures in evidence depict a level, straight portion
When Parker reached the place on the highway where the car was overturned, he was headed west. The overturned vehicle lay some short distance south of the surfaced highway, a distance of approximately 185 feet east of the crest of a hill where three driveways were present. Parker testified he slowed down in his right lane, rolled down his window and upon hearing the sound of a horn from the overturned vehicle, he believed there was a person inside the vehicle signalling to him. He proceeded up the hill to its crest, turned around in one of the driveways, returned to the point of collision, and stopped his automobile as close as possible to the overturned vehicle. As parked, his right wheels were a few feet over on the unsurfaced shoulder, the extreme point at which he thought he could safely park thereon, due to the rain and its condition. His testimony discloses that he turned on his left-turn indicator, which caused the lights on the left side of his automobile to flash, got out of his automobile, checked his rear lights, put on his slicker, checked his front lights and then proceeded to examine the wreck. After he had been occupied for several minutes looking into and under the automobile and searching the bushes in the vicinity, he heard noise caused by the collision of the Sullivan car with the rear of his vehicle. He had not seen the Sullivan car prior to the collision.
The two Sullivans, Buckholt and a fourth person, who was not present at the trial, constituted the crew of a drilling rig and because of the rain were returning home from their place of work. J. D. Sullivan was driving with his son seated next to him and Buckholt was seated on the rear seat. J. D. Sullivan testified that as he came over the hill traveling not more than forty-five miles per hour, he realized that the Parker automobile was stopped and obstructing a portion of his traffic lane, and due to the presence of an oncoming automobile which blocked the north lane of the highway, he immediately applied his brakes and skidded about ninety feet to collide with the parked automobile. He stated he first saw the Parker vehicle as he ascended the crest of the hill proceeding east at a point of about 280 feet from the point of collision, but he did not realize the Parker car was stopped until he reached the crest of the hill. He testified further that he did not see any lights burning on the rear end of Parker's automobile, either before or after the accident, although he assisted Parker in pushing the latter's car in order to get the radio to operate. Parker denied this, testifying that there was no need to push the car in order to operate the radio as it had been damaged in the accident. The testimony of A. E. Sullivan generally corroborated that of his father as to distance and speed. He also said that although the front lights of the Parker automobile were burning, he saw none on the rear. This witness testified he first ascertained that the Parker car was stopped from a distance of 180 to 200 feet.
Counsel for the plaintiffs herein contended before the trial court that Parker was not engaged upon an emergency mission, but in the event the court should hold that he was, that then his behavior in parking the vehicle in such a dangerous location constituted "reckless disregard of the safety of others" and he may not be excused from liability with LSA-R.S. 32, Sections 1 and 24.
The trial judge concluded that Parker was on an emergency call and that he acted as a reasonable person under the circumstances would have, both with respect to his decision as to whether there was or was not an injured person in or near the automobile, and secondly in parking his automobile as near as possible to the wrecked vehicle, believing he would be required to remove the injured person from the automobile in the rain, and place him in the emergency vehicle. Proceeding further, the judge stated his understanding of LSA-R.S. 32:24,
He also found that Sullivan approached the crest of the hill on the newly laid asphalt surface of a country road, in the rain, driving at a speed of 40 to 45 miles per hour; that he observed the Parker car as soon as he could have; that he then attempted to stop his automobile and skidded 92 feet on the wet asphalt into the rear of the Parker car; and that Sullivan was not negligent in failing to see what he should have seen or in operating his vehicle at an excessive rate of speed under the circumstances. The court concluded neither Sullivan nor Parker was negligent and rejected the demands of plaintiffs in both cases.
In his consideration of the application of LSA-R.S. 32:24, subd. D to the facts at hand, the judge a quo held that the conduct of Parker was not so unreasonable as to warrant a finding of actionable negligence. He opined that the lawmakers contemplated that drivers of emergency vehicles would be required to make decisions in the performance of their duties, but remain under the duty to drive "with due regard for the safety of all persons"; that the standard of care applicable to the drivers of emergency vehicles is different from that applicable to ordinary drivers; and that the nature of the emergency will have a bearing on the reasonable nature of the acts of the driver of the emergency vehicle.
Under our Louisiana law actionable negligence by the driver of an emergency vehicle may result from either gross or slight fault as defined in LSA-C.C. Art.
At least two factors should be examined in determining whether a particular dangerous act of a driver of an emergency vehicle is excusable:
(1) The inherent danger of the act of the driver; (2) Whether the dangerous act was necessary to the performance of the emergency function.
We do not find manifest error in the findings of the trial court. Under the circumstances as determined we are of the opinion that the fault of Parker was protected by the provisions of the state highway regulatory statute, LSA-R.S. 32:1, 24, as amended by Acts 1962, No. 310, and he was not guilty of actionable negligence. Nor does the record indicate negligence on the part of J. D. Sullivan.
Accordingly, the judgment from which the plaintiffs have appealed is affirmed at appellants' costs.
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