(concurring).
Undoubtedly, violation of §6307-100 GC, by the operator of the truck would be negligence as a matter of law, and his negligence would be imputed to his employer.
If we assume a violation of the statute there is no occasion to consider what a reasonably prudent person would do in an emergency. But on the evidence, we are not justified in making such an assumption.
The absence of fusee or flares would not per se constitute á violation of the statute. It was the failure of the operator to place them in the required position that constituted the offense against the State and the private wrong against any one directly injured thereby. Now the legislature must have intended that the operator should have an opportunity to comply with the statute before imposing upon him criminal and civil liability.
*617The evidence in this case raised the issue of whether the operator had time and opportunity to take the statutory precaution after the lights on his truck went out and before this collision. If he had not had time and opportunity, there was no violation of the statute and no negligence attributable to him, because of the absence of fusee or flares.
It seems to me that Special Charge No. 4 can be justified in this case on this theory, even though the same charge would be erroneous in another case, where the operator admittedly had had plenty of time to comply with the statute.
Furthemore, observance of positive rules of law is within the concept of the standard of conduct of a reasonably prudent person. They are not conflicting thoughts. And the court charged correctly on the effect of the violation of §6307-100 GC, in its general charge.
At any rate, I am not convinced that the giving of Special Charge No. 4 was so prejudicial as to require a reversal of this judgment.
I also agree with Judge Hildebrant that the issue of contributory negligence was properly submitted to the jury, and that the two issue rule requires an affirmance of the judgment.