I concur. I have never been quite satisfied with the doctrine laid down in Dalley v. Mid-Western Dairy Products Company,80 Utah 331, 15 P.2d 309, which seems to have been founded onNikoleropoulos v. Ramsey, 61 Utah 465, 214 P. 304. But there may be a valid distinction between the two cases. The Ramsey case involved negligence of a defendant to one rightly on the highway. The Dalley case involved that type of contributory negligence which amounts to the lack of due care necessary to escape from the other person's negligence, such person's truck being wrongly on the highway. I suggested that difference in my dissenting opinion in Hansen v. Clyde, 89 Utah 31 at page 42,56 P.2d 1366 at page 1369, 104 A.L.R. 943; also in the case of Farrell v. Cameron, 98 Utah 68, 94 P.2d 1068. I now resuggest it. Whether au fond there is some difference in quality in such contributory negligence which dynamically concurs in producing a result such as two overspeeding cars colliding, and that type of contributory negligence which can be assigned only as the cause of preventing one from escaping the consequences of another's negligence, is a subject which I think may yield returns on proper exploration. Classes of cases where there is a negligently maintained condition — a stage set by one onto which another walks — are pointed out in the fifth, sixth and seventh categories of situations set out in the dissenting opinion in the case of Hansen v. Clyde, 89 Utah 31 at page 45, 56 P.2d 1366 at page 1372, 104 A.L.R. 943. My positive duty to conduct myself so as not to injure another and my duty to so conduct myself as to protect myself from the consequences of another's negligence may have different contents.
The instant decision commendably departs from the severe logic of the Dalley case in order to make the law comport not with logic but with realities — a very welcome symptom. *Page 261 The logic of the Dalley case would require that a driver blinded by lights stop until the blindness disappears. There is in logic no more reason why a man should proceed when unable to see objects because of being blinded by the lights of some other car than when unable to see them by the lights of his own car. But as stated in my dissenting opinion in Farrell v. Cameron, supra, some concession must be made to actualities. In that case the implications was that a man on his own side of the road blinded by oncoming lights was under duty to discover an oncoming person on the wrong side of the road. Of course, such law would make driving at night on much used arterials practically an impossibility.