My inability to agree with this opinion is because the young boy plaintiff was legally and lawfully upon the premises, having gone on an errand for one of the employees there. In returning and passing the truck, he waved to the driver, who saw *Page 60 him. The questions and answers in the case are as follows:
"Q. Now just prior to the time you walked up the left side of that truck, did you see the driver, Frank Meyer, on the seat of that truck at that time? A. Yes, sir.
"Q. What did you do? A. I waved to him and he nodded back to me.
"Q. And then you proceeded up the left side of the truck, is that correct? A. Yes, sir."
I cannot reconcile this evidence with the statement in the opinion: "There was no evidence that the driver had any notice that the boy was entering the areaway, or passing around the side and the rear of the truck." Neither can I agree that the boy is guilty of contributory negligence as matter of law.
LEHMAN, O'BRIEN and FINCH, JJ., concur with RIPPEY, J.; CRANE, Ch. J., dissents in opinion in which HUBBS and LOUGHRAN, JJ., concur.
Judgment accordingly. *Page 61