(dissenting).
I respectfully dissent from this decision to reverse the judgment of the District Court on a factual matter.
I have no quarrel with the majority opinion if the facts found by the majority are correct. Nor have I any quarrel with its opinion if an appellate court is entitled to disregard the District Court’s evaluation of the credibility of the witnesses and make factual findings independent of such evaluation. The majority’s findings are based on the testimony of defendant’s two witnesses, driver and passenger respectively in defendant’s truck.
But here the District Court explicitly accepted as true the contrary testimony of plaintiff Cardinal. He testified that he followed by about 30 feet two other cars into the single open lane. If this is true, this traffic had pre-empted the single open lane of highway, as against defendant’s truck approaching from the opposite direction, see authorities cited in majority opinion. The sole proximate cause of this accident would be, as the District Court found, the negligence of defendant’s driver in entering the narrow one-way lane already pre-empted by plaintiff and said other traffic.
I cannot see how we can disregard this testimony accepted as true by the trier of fact. Whether these two cars in fact preceded plaintiff into the traffic lane, preempting same for themselves and plaintiff, cannot be established by physical evidence; only by the testimony of these witnesses to the accident. It seems to me we are unable from the cold record to evaluate as well as *743the District Court who saw them testify which of these witnesses are more accurate.
If it is argued that (due to delays in transcribing testimony and filing briefs, etc.) the District Court did not render judgment until about three years after the trial, which lessens the weight of its evaluation of these witnesses — this appellate court never saw them. Surely the impressions of the accuracy of witnesses gained from observing them over a day of trial, although three years old, are superior to any deductions made from a typewritten record, without benefit of any observation whatsoever of the demeanor, attitude, apparent intelligence, positiveness of tone as compared to indecisiveness, etc., of these witnesses.
Being firmly of the opinion that the District Court’s resolution of factual matters herein is not manifestly erroneous, it becomes my regretful duty to record my disagreement with the decision of my esteemed brethren.