concurring.
Without considering the admissibility of the patrolman’s testimony, which matter is not before us since no objection was interposed to that evidence, and without disregarding the statements and views of that witness, including his explanation that at the point of impact defendant’s right tire left a mark on the highway approximately two feet, six inches, north of the center line, we concur in the result reached by Mr. Justice Harnsberger.
The wind in the area of the accident at about the time of the impact was blowing from 41 to 54 miles per hour. After the accident, Browne told the patrolman that he guessed “the wind pushed me over.” When the patrolman asked Jack what caused the accident he told the patrolman that the “trailer house had veered over on the bridge.” At the trial, Jack testified that he did not recall whether the truck and trailer were over the center line at the time he started to pass; that to the best of his recollection he stayed on the north lane of traffic; and did not remember much about the collision except he “just went to pass * * * [Browne] just went over the bridge and the wind, as far as I know, hit it and threw it over in front of me.”
The trial court was warranted in finding the driver of the overtaking vehicle, who admittedly had defective eyesight, guilty of negligence in passing, without warning, a track and cumbersome trailer on a bridge in a high wind at the maximum speed allowable on a two-lane highway. Even accepting defendant’s counterclaim as an affirmative defense of contributory negligence, the trial judge was nevertheless justified in finding that there was a failure of proof that plaintiff violated either a statute or rule of the road and that such violation was a proximate cause of the accident.