(dissenting) — I would reinstate the jury verdict in favor of defendants under the line of authority represented by Cunningham v. Dills, 19 Wn.2d 845, 145 P.2d 273 (1944); Morehouse v. Everett, 141 Wash. 399, 252 P. 157, 58 A.L.R. 1482 (1926); and Devoto v. United Auto Transp. Co., 128 Wash. 604, 223 P. 1050 (1924). These cases most nearly resemble the factual situation that confronted the parties in the instant case and hold that the issue of negligence is for the jury. Under the evidence in the instant case, the jury could have found that both plaintiff and defendant were negligent in driving into the dust cloud or, on the other hand, they could have found that the dust suddenly engulfed both parties creating an emergency situation in which neither party should be held negligent — an act of nature over which neither party had any control. Moreover, the shoulder was too narrow to allow defendant. to pull off the roadway. For the court to hold that defendant was negligent as a matter of law for not stopping his loaded gasoline truck weighing 18,000 pounds in the main portion *166of the highway, knowing that large wheat trucks and petroleum tankers regularly used that highway, invades a factual area that is more properly reserved for the jury. The danger contemplated by the defendant driver became a reality when a tanker traveling in the opposite direction struck another car which had stopped at the point of the accident involved in this case.
The line of cases culminating in James v. Edwards, 68 Wn.2d 194, 412 P.2d 123 (1966), relied upon by the majority, are factually distinguishable and the obligation to stop should be limited to similar special-type situations. In James v. Edwards, supra, for example, the defendant with the sun in his eyes drove through a barricade in the street and hit a workman.
In my view, the trial court properly submitted the issue of defendant’s negligence to the jury. The court erred when, on reconsideration, it granted plaintiff’s motion for directed verdict against defendants and ordered a new trial on the issue of damages.
I would reverse.
Petition for rehearing denied June 10, 1974.
Review granted by Supreme Court July 30, 1974.