concurring:
I concur in the conclusion of the majority of my associates, but reached that conclusion by a different line of reasoning.
(1) The three pedestrians, at the time of the accident, were standing close to the side of a bridge twenty feet wide. The only vehicle in sight, approaching from either direction, was this truck loaded with lumber. The pedestrians were looking at the approaching truck and the driver evidently saw them. He turned his truck towards the center of the highway and bridge and in passing the pedestrians left a four to eight-foot space between the truck and them. Under these circumstances, the mere fact that plaintiff had crossed from the left to the right-hand side of the bridge and was standing there talking to pedestrians going in the opposite direction did not make him guilty of contributory negligence.
(2) I do not think that there was sufficient evidence to submit the question of defendant’s negligence to the jury unless the doctrine of res ipsa loquitur applies.
Plaintiff alleged two grounds of negligence:
(a) That the lumber was “negligently and carelessly packed or loaded.” The evid'ence on the point is as follows :
“Q. How was this lumber loaded on the truck?
*695“A. This lumber was loaded on each side and filled out in the middle like it is generally loaded. (Italics supplied.)
“Q. Was it loaded to the top of the standards?
“A. It looked like to me it was. It just had a truck load. I would not say it was clean over the top of the cab, but it was packed up.
“Q. Do you know whether it was loaded to the top of the standards?
“A. No, sir; it was loaded though.”
This is all the evidence introduced to support the allegation, except that a piece of lumber fell off the truck and struck plaintiff. Unless negligence is inferred from the accident itself, there is not sufficient proof of the charge to submit the question to the jury.
(b) The other ground of negligence alleged was that the truck was being driven “at a high, reckless, dangerous, excessive and unlawful rate of speed.”
The vehicle involved in the accident was a one and one-half ton Chevrolet truck, equipped with pneumatic tires. The statute then in force was Code, section 2145 (7) (a), Acts 1926, ch. 474, section 6 (a), which provides:
“Motor trucks of rated capacity up to but not exceeding one and one-half tons, and equipped with pneumatic tires, may operate at the speed limits imposed by section three of this act.”
Section three of the act (section 2145 (4) (a) of the Code) provides that a vehicle shall be driven “at a careful and prudent speed not greater nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway, and of any other conditions then existing. And any person who shall drive any vehicle upon a highway at such speed as to endanger the life, limb or property of any person, * * * shall be prima facie guilty of reckless driving.” Subject to these limitations, and others which need not be mentioned, the rate of speed is fixed at forty-five miles an hour.
*696(1) At the time and place of the accident no other vehicle was approaching in either direction, so the driver of the truck did not have to govern his speed hy traffic. (2) The road at the point of the accident was wide, hard-surfaced and straight, hence the driver was not required to regulate his speed because of the “surface and width of the road.” (3) The only “other condition then existing” was the fact that a truck, loaded with green lumber, was approaching a concrete bridge twenty feet wide, on which three men were standing close to the handrailing, on the north side of the bridge. In passing these men, the driver of the truck turned to his left, thereby leaving a space of from four to eight feet between the truck and the point where the men were standing. The “life, limb or property” of no person was endangered because of the manner in which the truck was being driven. Under such circumstances, the maximum speed fixed by the legislature for a truck equipped as, and with the carrying capacity of, the one in question is forty-five miles an hour. Unless the evidence shows that the truck was being driven at a greater speed than that named, the driver was not guilty of exceeding the speed limit. On this point the evidence was as follows:
“Q. How fast was this truck traveling at the time of this accident as best you can get at it?
“A. I think the best I can get at it, it was dropping forty to fifty miles from the hill.
“Q. Is that a straight, wide road there?
“A. Yes, sir; straight, wide road into the bridge and right through it.
“Q. There were no other automobiles or trucks on the roadway at that time?
“A. No, not at that time; not a car or nothing passed there. I looked and couldn’t see no other folks—it was kind of lonesome—it shocked you. No one passed by while I was there.”
On cross-examination the same witness stated that the truck was traveling “about forty or fifty miles.”
*697John Downey, another witness who was struck hy the same plank, said:
“Q. How fast was this truck running at the time it came down on the bridge and hit him?
“A. Forty or fifty miles per hour so far as I could tell— I am just guessing—he was coming.”
On cross-examination Downey said:
“Q. Did he ask how fast the truck was going?
“A. He didn’t ask me how fast—I said thirty or forty miles—something like that.
“Q. You told Mr. Felton or Mr. Bowen thirty to forty miles ?
“A. It might not have been going that fast—I said thirty or forty miles—something like that.
“Q. When you talked with Mr. Felton and Mr. Bowen you told him it was going thirty to forty miles per hour, didn’t you? And Mr. Felton said: ‘You know it doesn’t go that fast.’
“A. I said about thirty-five or forty miles an hour.”
Another witness, Crews Hall, who did not see the accident, but saw the truck just before the impact, said:
“Q. Can you give us any idea as to the speed at which that truck was traveling when it went down the hill?
“A. Somewhere around thirty-five or forty, and it might be more than that. It was traveling down the grade and getting pretty speedy.
“Q. You would estimate it at thirty-five or forty, or probably more?
“A. Yes, sir.”
Plaintiff himself testified:
“Q. How fast do you think this truck was traveling that injured you?
“A. Traveling around forty or forty-five miles an hour. At least forty miles anyhow.”
None of these witnesses attempted to fix the exact speed of the truck. They frankly stated that they were guessing or estimating the rate of speed. From this evidence I cannot draw the inference that the speed of the truck at the time of the accident exceeded forty-five miles an hour.
*698The fact remains that plaintiff, whose action in no way contributed to the accident, was struck and seriously injured by a piece of lumber which fell from a moving truck under, the exclusive control of defendant. Ordinarily, if the lumber had been properly loaded and properly watched as the truck traveled along the highway at a proper and reasonable speed no injurious results would have followed. “The chief evidence of the true cause of the accident, whether culpable or innocent,” was practically accessible to defendant, but not to plaintiff. See Riggsby v. Tritton, 143 Va. 903, 129 S. E. 493, 496, 45 A. L. R. 280.
Defendant knew, or could easily have ascertained, where and how the lumber was loaded, and what, if anything, occurred to disarrange or loosen the lumber on the truck between the place of loading and the place of the accident. This evidence was not readily accessible to plaintiff. Accidents of this nature and quality do not, in the usual course of things, happen to pedestrians on the highway when due care is exercised on the part of the operators of trucks loaded with lumber. In Roanoke Ry. & Electric Co. v. Sterrett, 108 Va. 533, 62 S. E. 385, 388, 128 Am. St. Rep. 971, 19 L. R. A. (N. S.) 316, it is said:
“The presumption of negligence suggested does not arise from the abstract fact of an accident to a passenger, but arises from a consideration of the nature and quality of the accident; and it must appear that it was such an accident as does not, in the usual course of things, happen to passengers when due care is exercised on the part of the carrier. Thompson on Negligence, vol. 3, section 3484; Richmond Ry. & Elec. Co. v. Hudgins, 100 Va. 409, 41 S. E. 736.”
For these reasons, I am of opinion that the doctrine of res ipsa loquitur should apply to the facts and I therefore concur in the conclusion of the majority to reverse the judgment of the trial court and remand1 the case.