dissenting : No human eye had an opportunity of observing the tragedy, resulting in the death of plaintiff’s eighteen-months-old child, save that of the driver of the truck, which, according to the evidence, killed it. He says he did not see the child; but his silence on the subject would have been just as significant, since the circumstances of the case indicate that a reasonable lookout, which it was his duty to keep, would have discovered it.
*32We cannot treat this case and the evidence from which the jury could draw reasonable inferences, as if it were an adult, or an older child, who was killed. Entering into an appraisal of the probative force of the evidence, we must not only examine the confines within which it is necessary for the driver of a motor vehicle to observe the duty of a reasonable lookout, hut in connection therewith we must call to our aid our common knowledge, not only of the habits of children, but of their physical powers and attainments at the tender age of eighteen months, of which no account seems to he taken in this decision. If considered at all, a conclusion is reached which is startlingly opposed to the facts of common experience.
The question here is a simple one: whether the fact that the driver did not see the child at all is, under the circumstances of this case, any evidence from which the jury might infer a want of proper lookout. In an affirmative answer to that question, I recite certain facts of the evidence, assembled upon the principle that the plaintiff is entitled to have the evidence considered in the light most favorable to him, and is entitled to all reasonable inferences therefrom.
The door of plaintiff’s house from which" the child went out on its fatal venture was from thirty to forty feet from the road. This road was about thirty feet wide — a sandy road, with two wheel ruts made by travel. Near to the road, but not in a position to obscure the vision of the driver, was a barn or stable. Still nearer, a pile of lumber about eighteen inches high. This latter is mentioned only because of the remarkable suggestion made in the argument — that the child might have fallen from this lumber pile, received its fatal wound, and thereafter walked into the middle of the road to die! The road from the direction the truck approached was straight for half a mile, with no obstruction whatever to obscure the view. The vehicle was not a complete truck carrying a trailer, but it was a truck of the trailer type, loaded with logs.
The child, eighteen months old, had been playing in the room beside the mother, who was sewing. In just a few minutes — -the evidence puts it as low as two — the mother missed the child, heard a truck going past, hurried out to look for the child, and found it lying in the middle of the road between the two wheel ruts, dead. There was a small bruised red spot on the back of the head and blood was coming from the nose and ears.
(The evidence is conceded to be sufficient to go to the jury to establish the death of the child by the defendant’s truck and it will not be repeated here.) The truck driver was overtaken some distance away and stated that he did not see the child; that he did see two children in the field to the left. The house was to his right.
*33Tbe court declined to accept these facts as any evidence of the failure to keep a reasonable lookout.
I may ask here, must the plaintiff in a civil action, where it becomes necessary to establish his case by circumstantial evidence, exclude every contrary hypothesis, reasonable or speculative, which may be presented, or may occur to the judicial mind, before he can be permitted to go to the jury ?
Speculative hypotheses which have been freely indulged in during the argument of this case may be useful as testing the probative force of circumstantial evidence, but not a few of them are absurd, if adopted. Here we have the suggestion that this eighteen-months-old child “may have rushed” in the way of the truck too suddenly to be seen or for the accident to be avoided. This is a good defense where the facts are known or observed, but, taking it as here presented, it is so contrary to experience as to be at least improbable. Children of eighteen months old do not run or “rush out” that way. It is highly improbable that a child of that age could have traversed the distance from the house to the passing truck, or to have traversed any part of the zone of obligation by rushing from the roadside so quickly as to have escaped the notice of the driver if he had been exercising a prudent lookout.
It was the duty of the driver to pay attention to objects and movements immediately near the line of travel, especially to the movements of children. He saw the children to the left. Under the circumstances of this case, the evidence that he did not see the child to the right bears upon the duty of lookout.
Evidence that a driver did not see what he ought to have seen has always been considered as evidence of a failure to keep a proper lookout.
“It may be stated that the driver of an automobile is charged with a notice of such conditions in and along the road as he should have seen.” Huddy on Automobiles, Yols. 3-4, p. 89. Italics supplied. “Failure to see what he should have seen of the surrounding circumstances is evidence of negligence.”
The rule of the prudent man cannot be reduced to the standards observed by tunnel-visioned drivers, whether this condition is physical, mental, or comes about through a habit of inattention. In several states, where strict attention is given to the qualifications of drivers, they are kept off the road altogether.
There is no authority for the theory that the duty of the lookout is confined to the wheel ruts or the width of the open road, or even to the right of way, or straight ahead. “The driver must look not only straight ahead, but laterally ahead.” Hornbuckle v. McCarty, 295 Mo., 162, 163, 243 S. W., 329, 25 A. L. R., p. 1508. This view is adopted by practically all text writers on the subject. “He is conclusively presumed to *34have seen such surrounding circumstances as he would have seen had he properly exercised his faculty of vision.” McDonald v. Yoder, 80 Kansas, 25, 101 P., 468; Kelly v. Schmidt, 142 La., 91, 76 So., 250, 251, citing Thompson on Negligence (White’s Supplement), Yol. 8, paragraph 1340 (h) ; Kokowsky v. Collier, 236 N. Y. S., 622. The duty of lookout implies the duty to see. Fitzgerald v. Norman (Mo.), 252 S. W., 43. In this case failure to see a child which had to traverse some thirty feet before coming in front of the automobile was considered evidence of a failure to keep a proper lookout. In Breeden v. Hurley, 13 Tenn., 599, where the attention of the driver was directed to one boy and another was run down, failure to see the latter was considered evidence of negligence.
Uniformly, the authorities have emphasized the duty of lookout with respect to children of tender age. “The vigilance and care of the operator of an automobile vary with respect to persons of different ages and different physical conditions, and he must increase his exertions in order to avoid danger to children whom he may see, or by the exercise of ordinary care could see, on or near the highway.” Blashfield Encyclopedia, Vol. 2, pp. 520, 521, citing S. v. Cray, 180 N. C., 697, 104 S. E., 647.
From these authorities we gather no new principle of law, only an emphatic statement of something that has always been the law — that the duty of care on the part of the driver does not first begin when the victim, infant or adult, is actually observed in a perilous position, but as soon as he should have been seen by keeping a proper lookout. If he is not so seen, a legitimate inference of negligence arises, with which the jury alone is permitted to deal.
Upon the authorities cited, and upon the rule of common sense, such an inference arises upon the evidence. There is no inference from the evidence of the speculative suggestions made in defense, namely, that this child, eighteen months old, ran into the road before the car, or ran into the trailer part after the cab had passed, with such speed as not only to make the accident unavoidable, but as to prevent the driver from being able to see it. I have never heard of another case in which that sort of thing prevailed, without evidence to support it.
The evidence should have been submitted to the jury.
ClaRKSON and Devin, JJ., concur in dissent.