The statement, "White, driver of the brick truck, not having notice of McCoy's intention to turn, and apparently endeavoring to avoid running into the stock truck, pulled to the left, avoided a rear end collision, and hit the side of the stock truck 'about three feet from the rear end and scraped the full length along the side,' " if meant as a statement that White was not intending to pass, as distinguished from avoiding a rear end collision, is contrary to the statement of the plaintiff's own witness Fuller:
"Q. According to the observation which you made there would you say the brick truck was passing the *Page 719 Carsten truck there at the place where the impact occurred? * * *
A. Yes, I'd say it was.
Q. That the Madron truck was passing the other truck in the intersection?
A. Yes."
I cannot agree that this statement: "It would seem that this conduct [gradually slowing up in 200 feet from 25 to 10 miles an hour], on the part of the driver of the cattle truck, was tantamount to saying to the driver of any following truck, that he was slowing up to allow the latter to pass — at least until he reached the line of intersection. It would have been otherwise had he, at any time, given signal of intention to turn either to the right or the left. The very fact of reducing his speed, to two-fifths of his previous speed, in the space of 200 feet, without giving any sign or signal would indicate to the average driver following him, that the one so reducing his speed was intending to allow the following car to pass," is either a proper, exclusive assumption of fact or exculpatory statement of law.
I cannot agree with the holding in the opinion that only vehicles sufficiently short and traveling at such rate of speed that they may entirely pass and clear each other at intersections are interdicted by subdivision "c" of section48-513. I think that section of the statute prohibits any vehicle, no matter how long or short, at any rate of speed, to pass another at an intersection unless permitted by traffic or police officer. The larger the vehicles the greater the hazard to traffic at such intersections because the greater would be the obstruction of the view of everybody concerned.
It seems to me the construction placed upon the presumption of due care and caution as supporting the proposition that there was no evidence of contributory negligence presenting a jury question is directly contrary to the holding inDepartment of Finance v. Union Pacific Railroad Co., 61 Idaho 484,104 P.2d 1110. The trial judge, sitting without a jury, was performing the functions of a jury; and it was for him to determine from all facts and circumstances, giving full force and effect to *Page 720 the undoubted holding that the defendant was guilty of several acts of negligence, whether the acts of the deceased constituted, under subdivision 3 of 48-504, 48-512, 48-513 (c), and 48-515, such contributory negligence as to bar recovery. Neither William v. Herrin Transfer Warehouse Co., (La.)153 So. 313 nor Wesley v. English 71 F.2d 392, reversed a verdict for defendant, or its equivalent, because contributory negligence was not shown as a matter of law but affirmed verdicts which had resolved conflicts of facts against the defense of contributory negligence.
I therefore dissent.
Morgan, J., joins in this dissent.