(dissenting).
The only question to resolve is whether plaintiff, McFarland, was contributively negligent as a matter of law.
McFarland was travelling east out of Farmington on Highway 550. The accident occurred one tenth of a mile east of the Farmington city limits and at the east end of a cemetery that fronts on the southern lane of the eastbound highway. There were two lanes in each direction divided by a medial area. We are concerned only with the two southern lanes of traffic moving eastward.
As McFarland approached the west end of the cemetery area, he was driving in the north lane at 55 mph which estimates at 75 feet per second. He looked to his right and saw six to eight cars parked off the south side of the highway, and 30 to 40 people, including children, walking out of the cemetery toward the highway. While driving along, he looked to the right and ahead to make sure no person, including children would run out in front of him. In fact, he was watching both sides of the highway and the area in front of him. The cemetery fronted on the highway about 160 to 200 feet.
Defendant, Helquist, drove so fast into McFarland’s lane of travel while McFarland’s eyes were focused at a different point that McFarland did not see the Helquist car until he looked directly ahead. A time period of two to three seconds elapsed between the time he might have seen the Helquist car and the time of the accident. The Helquist car was between 10 and 25 feet directly in front of him. It was turned slightly north as though Helquist was preparing to go through the median into the westbound lanes back toward Farmington. McFarland braced himself and his car struck the Helquist car.
We are not confronted with a situation in which McFarland was looking ahead and had a duty to see that which was in plain sight. Under the circumstances of this case, McFarland’s attention to traffic ahead was momentarily diverted by the activity surrounding a funeral departure by a host of people. Whether McFarland was contributively negligent is a question of fact for the jury.
It is hornbook law that the operator of a vehicle has a duty to keep a proper lookout and see what is in plain sight. UJI 9.3. To justify his failure to see a vehicle, the driver must offer evidence of justification. New Mexico State Highway Dept. v. Van Dyke, 90 N.M. 357, 563 P.2d 1150 (1977). Once a reason is given, its reasonableness is for the jury. Selgado v. Commercial Warehouse Company, 86 N.M. 633, 526 P.2d 430 (Ct.App.1974).
The driver of a vehicle has a duty to keep a reasonably continuous lookout, but not a constant lookout in one direction or constantly to have his eyes on the road ahead. Crocker v. Johnston, 43 N.M. 469, 95 P.2d 214 (1939). He is not required to refrain from directing his attention to reasonably anticipatable dangers which may emanate from sources other than the roadway ahead. Burnett v. Marchand, 186 So.2d 383 (La.App.1966). As a matter of fact, the driver has a right to assume that any person entering into the highway would do so with due care and caution. Beaucage v. Russell, 127 Vt. 58, 238 A.2d 631 (1968).
Plaintiff’s contributive negligence is a genuine issue of material fact.