Hano v. DEPT. OF TRANSP. AND DEVELOPMENT

523 So. 2d 861 (1988)

Lena Mae Ezell HANO, Harold Ray Hano, Sharon Ann Hano Sullivan, Kenneth James Hano, Phillip Wayne Hano, and Nancy Marie Hano v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.

No. 88-C-0669.

Supreme Court of Louisiana.

April 22, 1988.

Denied. The result is correct.

LEMMON, J., concurs, disagreeing with the reasoning of the court of appeal, but finds no basis to hold defendant at fault.

CALOGERO and COLE, JJ., would grant the writ. There is no presumption of Hano's negligence in this case. The Court of Appeal erred in extending the presumption of negligence enunciated in Simon v. Ford Motor Company, 282 So. 2d 126 (La. 1973), to these facts. The mere presence of Hano's car on the opposite shoulder does not imply negligence on his part since this does not exclude other reasonable hypotheses consistent with proper driving.

*862 See Larkin v. State Farm Mutual Automobile Insurance Co., 233 La. 544, 554-55, 97 So. 2d 389, 392-93 (1957). Since the trial court found there was no evidence of Hano's negligence, the State has failed to establish the defense of contributory negligence. Esco v. Smith, 468 So. 2d 1169 (La.1985).