(concurring in the result) — I am in substantial agreement with the reasoning of the majority and concur in the result.
I agree that the trial court correctly denied the plaintiff’s motion for a directed verdict. The jury was entitled to disbelieve the plaintiff’s testimony and believe the testimony of the defendant. It could have concluded that by reason of the creeping progress of the defendant while he was looking for traffic on his right beyond the parked trucks obstructing his view, as related to the speed of the plaintiff, sufficient time would have elapsed from the time the defendant entered the intersection to the point of collision for him to have been in the intersection prior to the plaintiff. Under instruction No. 11, the plaintiff would then have been required to yield the right-of-way to the defendant.
The plaintiff assigns error to the failure of the court to give plaintiff’s proposed instruction No. 11, charging the defendant with seeing that which was there to be seen. This instruction was properly refused because the only issue under the facts at that particular time in the case was whether the defendant or the plaintiff was entitled to the right-of-way, and the defendant’s seeing or not seeing the plaintiff was unnecessary to this determination.
*881The plaintiff contends the court erred in failing to give his proposed instruction No. 14, relative to oral testimony-being required to yield to physical facts. I disagree with the majority’s indication that such an instruction should not be given in a case. I am of the opinion that an appropriate case would justify such an instruction being given if requested. However, the physical evidence must not be subject to dispute and the inferences therefrom must be certain. Here there was some uncertainty from the testimony as to the relation of the mound of dirt on the highway to the place of the collision. The instruction was therefore properly refused.
The plaintiff contends the trial court erred in giving instruction No. 13, for the reason that it is in conflict with instruction No. 11 in dealing with the issue of the plaintiff’s and the defendant’s right to the right-of-way, which was material to the issue of proximate cause. These two instructions, particularly when considered with instruction No. 12, appear to be confusing in stating the rules of the road as to whether the plaintiff or the defendant had the right-of-way. A careful analysis of the instructions given discloses, however, that any prejudice resulting therefrom by reason of confusion or contradiction in the instructions was prejudicial to the defendant and not to the plaintiff.
I concur with the majority in the disposition of the remaining assignments of error.
September 12,1966. Petition for rehearing denied.