GLADNEY, Judge.
This action is one in tort for recovery of damages to a dump truck driven by Fred Anette Ainsworth which was involved in a collision with a similar truck operated by Dan Guin. The accident occurred August 13, 1951, on a dusty, graveled road in Caldwell Parish. Made defendants in this cause are Henry & Hall, a partnership, its individual members Reginald T. Henry and Melvin Hall, Jr., and their insurance carrier, The Aetna Casualty & Surety Company. Through supplementary pleadings Dan Guin and George E. McCart, owners of the truck operated by Guin, were joined as defendants. When called for hearing this case was consolidated for trial with the suit of Fred Anette Ainsworth against the same above named defendants, which case is La.App., 69 So.2d 77. In that case the New Amsterdam Casualty Company intervened, as the insurer of Ainsworth's employer, Quality Gravel Company, to secure reimbursement for workmen's compensation paid to Ainsworth. Guin and McCart failed to plead in either action and as a result thereof default judgments against them were rendered. These judgments were not appealed and are now final. After trial judgments were rendered separately in favor of Dewey Amyx for $940, and in favor of Ainsworth for $7,500, of which amount $3,170 was directed to be paid to the intervenor, New Amsterdam Casualty Company.
The principal issues asserted herein are: whether the negligence of Daniel Guin was a proximate cause of the accident; whether Ainsworth was guilty of contributory negligence; and whether Guin was an independent contractor and not an employee of Henry & Hall.
Most of the salient facts are not in dispute. Ainsworth was driving an empty gravel truck owned by Dewey Amyx south to a gravel pit near Jena on a dry, clear day, August 30, 1951. The graveled road he was traveling had recently been worked and there having been a sustained dry period there was created an unusually dusty condition, so much so that most of the vehicles thereon were traveling during the daytime with headlights burning to increase visibility. Another dump truck loaded with gravel belonging jointly to its driver, Dan Guin and his brother-in-law, George E. McCart, was traveling north on the same road. The two trucks traveling in opposite directions met head-on and each came to rest on its wrong side of the road.
The written reasons assigned for judgment by the judge a quo fully and accurately state the material facts bearing upon the question of negligence of Guin and Ainsworth. We approve of his findings on factual and legal issues relative to this phase of the case and adopt this portion of the opinion as our own:
'Immediately prior to the collision plaintiff's truck had crossed the Black Bayou bridge and had climbed a fairly steep grade on which the road curved somewhat sharply to the West, but before reaching the point of the collision the truck had reached almost level ground and the sharpest point of the curve had been passed, the road continuing to curve to the West gently for some distance south of the point of impact. Thus it will be seen that the inside of the curve at the point of collision was on the side of the vehicle going south while the outside of the curve was on the side of the vehicle going north. The entire width of the road, that is the level surface between the roadside of the ditch banks, was 27 to 30 feet.
'There was no obstruction of view of the approaching vehicles by the drivers of the opposing trucks for more than 100 yards from the point of impact. The weather was dry and the passing of each vehicle on the gravel road raised a substantial amount of dust. Guin testified that just a few yards south of the point of collision, he had met another truck which had raised so much dust that he could not see the roadway, and attempted to keet his
car near the ditch by trying to look at the right shoulder of the road. He testified that as a result of the dust he did not see the approaching Ainsworth vehicle at all before the collision and was aware of the collision first by feeling the jar and then seeing the Ainsworth truck pass over the hood of his truck turning to its left as it did so.
'Ainsworth, on the other hand, testified that no vehicle had preceded him immediately and that the amount of dust was not sufficient to interfere with his unobstructed vision of the approaching Guin truck. He testified that he saw the truck when it was 80 or 90 yards from his truck, at which time it was approximately in the center of the road and was swerving still further toward the west side. Ainsworth further testified that when the trucks were about 40 or 50 yards apart, the Guin truck had pulled over on his side and that he, Ainsworth, had slowed down thinking the Guin truck would return to its right side of the road. Ainsworth further testified that he was driving well on his right side of the road and maintained that position until an instant before the collision, when, realizing that the Guin truck was not going to pull over and not having room to pass further to the right, he made a last second effort to turn to the left; that immediately after his truck had turned toward the left the collision occurred.
'After the collision the Ainsworth truck came to rest on its left side with the front end toward the south and the top of the truck as it lay on its left side about even with the east edge of the road. The Guin truck came to rest still standing on its wheels with the left front wheel at a position variously estimated as being from 3 to 6 feet from the west edge of the road, being the left side of the road with relation to the Guin truck, with the rear end of the truck approximately 2 feet further from the west edge of the road than the front end. The trucks had moved past each other sufficiently so that there were 6 or 8 feet between the rear ends of the two vehicles.
'Without reviewing all of the testimony on the point, the Court is convinced that Ainsworth was not blinded nor was his vision interfered with materially by the dust of the preceding vehicle. It is possible that Guin could have been experiencing some difficulty in that respect which was not being experienced by Ainsworth. He could have been emerging from a dusty area which Ainsworth had not yet reached. The Court is not convinced that the dust was sufficient to have prevented Guin from seeing Ainsworth in ample time to have avoided the collision. However, it matters not whether Guin drove to the left side of the highway through sheer inattention or driving on the inside of a curve or if he lost his position in the road because the dust prevented his seeing the road. In either event his action in driving on the wrong side of the road constituted gross negligence.
'Essentially then, the basic issue as stated above may be summed up in the question: At what point in the roadway did the collision occur? Guin testified positively that he could dimly see the right edge of the road and that his right wheel was within two feet of the edge of the road, while Ainsworth testifies quite positively that he was driving entirely on his right side of the road and that Guin, immediately before the collision, had driven his truck so far onto Ainsworth's side that it was impossible for Ainsworth to pull further to his right and thus pass. Obviously these two conflicting statements cannot be reconciled.
'In addition to the physical facts which have been outlined above, it should be noted that the principal impact of the two vehicles was the right front of each with the impact centering at about the point of the right front lights and fender. The most significant
fact is that the Guin truck loaded must have weighed approximately three times as much as did the Ainsworth truck empty. Despite questioning several witnesses, who should have known, the Court was unable to ascertain for the record the weight of pit-run gravel and the weight of the trucks empty. The trucks were of the same model and type and presumably the same approximate weight empty. It is a simple fact of which the Court can take judicial knowledge that five yards of pit-run gravel will weigh at least twice as much as the truck in which it is carried.
'In the light of the above physical facts, it is absolutely certain that Guin's testimony as to the position of his truck at the time of the collision cannot be correct. Had his right wheel been within two feet of the east edge of the road as he said it was, Ainsworth's left wheel would already have had to have been off of the road on the east side in order for the two vehicles to have collided in the area of the right front lights of each. And in order for Ainsworth's truck to have turned on its left side with the top of the cab approximately even with the east edge of the road, the beginning of its capsizing had to be at a point several feet to the west of its resting place. Furthermore, it would have been impossible for the Guin truck to have moved from its right side of the road to a point where the truck was entirely on its left side, remaining upright, without describing a very sharp and abrupt turn to its left.
'The physical facts in the Court's opinion completely refute Guin's version and are in entire harmony with Ainsworth's version of the position of the trucks at the time of the collision. It is a law of Physics that when two objects, at approximately the same speed with the factors of gravity being approximately equal, collide, at courses which vary slightly--from a head-on collision, if one object is considerably heavier than the other, the lighter object will be deflected from its course sharply,...
