dissenting.
I dissent. The defendant presents and argues three questions. These must be answered contrary to defendant’s contentions if the judgment of the trial court is to be affirmed. The majority neither mentions nor answers two of the questions. The answer given to one is erroneous in my opinion.
Plaintiff alleged that the car involved in this accident was being driven with due care and under proper control when it was “thrown and precipitated” into a hole in the road which was “completely hidden” from the sight and view; that the defendant county had notice or with the exercise of reasonable diligence could have known of the want of repair of the road; and that it negligently failed to render the road safe for. travelers or to provide barricades.
The defendant answered, admitting its corporate capacity, denying generally, and pleading that whatever damages occurred to the automobile were caused by the gross negligence of the driver which contributed directly thereto and was the proximate cause of the accident. The reply was a denial of allegations in the answer which were not admissions of allegations of the petition.
Plaintiff in its motion for a directed verdict contended first that the evidence showed conclusively negligence of the defendant county in maintaining the road and notice to the county, and that there was lack of evidence of contributory negligence of the driver of the car.
The trial court held that there was no issue of fact to be submitted to the jury and directed a verdict in plaintiff’s favor.
By motion for a new trial the defendant contended, among other things, that the court erred in not sub*21mitting these three issues to the jury: (a) The contributory negligence of the driver of the car; (b) the negligence of the defendant in failing to use reasonable and ordinary care in the maintenance of the road; and (c) the knowledge or lack of knowledge of the defendant as to the defective or dangerous condition of the road.
By its brief here the appellant states the above as the three questions involved, and assigns as error the refusal of the court to submit the issues to the jury and. in directing a verdict for the plaintiff. Defendant by its brief argues the three propositions. The plaintiff in its brief states that the above questions are involved and argues them. In the face of this record, the majority opinion states that “The assignment of error rests upon the single fact that, the driver of the car being negligent, it was error for the court to fail to submit the question of negligence and contributory negligence to the jury.” I submit that the assignment is not so limited.
The majority decides that there was no evidence of negligence on the part of the driver of the car sufficient to take the case to the jury, and affirms the judgment without stating or answering the other two questions involved. These two undetermined contentions become important in view of the evidence offered by plaintiff that in July 1946, preceding this accident in September 1946, there was a small hole in this roadway; that the road was worked and made passable at that time; that rains subsequent thereto caused the much larger washout. I find no evidence as to the time when the washout occurred which produced the hole into which the car was driven. I find no evidence of notice to any county official, or knowledge by anyone of the condition of the road that arose subsequent to the July operations, and which existed at the time of the accident. An answer to these questions is' required if this judgment is to be affirmed.
But, as I see it, the judgment must be reversed for *22failure to submit the issue of contributory negligence to the jury.
The majority states that the defendant produced no evidence of negligence on the part of the driver of the car. The rule is: “If contributory negligence is relied upon by defendant as an affirmative defense, the burden is upon him to prove it by a preponderance of the evidence pertinent to that issue contained in the whole record, except insofar as the same may appear in evidence adduced for plaintiff.” Meyer v. Platte Valley Construction Co., 147 Neb. 860, 25 N. W. 2d 412.
What, then, is the evidence as adduced for the plaintiff, bearing on the question of contributory negligence?
There was a “main-traveled” road, a “good traveled road” running east and west. The pictures show it to be graded and without distinct tracks from shoulder to shoulder. Branching off this road in a northwest direction is a road described in the evidence as “slightly-used,” a “trail,” “just two tracks.” The pictures show it to be two tracks with low weeds between the tracks and at points across them as the tracks lead to the hole from the main-traveled highway. The hole was from 30 to ’50 feet north of the turn from the main-traveled highway.
Now, what about the hole which the majority describes as a “small hole in the left side of the road, reaching over the left track” and which “just barely took out the left track of the road, not reaching to the center of the road.” The evidence shows the hole to be from eight to ten feet deep and from 15 to 20 feet wide. From the direction in which the car was traveling, plaintiff’s pictures show that the “small hole” took out the entire left track for a distance of several feet. Another picture shows that it extended across and up to, if not actually into, the right track. The sheriff testifying for the plaintiff on direct examination said that “it didn’t quite take in that right-hand track.”
Now, as to whether or not the hole could be seen, *23the sheriff testified that the “edge,” “the farther bank of the washout” could be seen at a distance of 50 yards, which would be at least 100 feet down the main highway before coming to the turn. It was “clearly visible” from 25 feet away. The picture at that distance shows it to be a great gap in the left track and into the weeds between the two tracks. With that situation existing, the driver of the car, when the sun was about an hour high, drove west along the main-traveled road and made the turn at a speed of not over ten miles an hour, and drove his car into the hole. He said he could not see any evidence that the hole was there as he .approached it. He did not see the hole when the farther bank was visible 150 feet away; he did not see the hole when it was “clearly visible” 25 feet ahead of him; he did not see it when he was one foot from it. He was not conscious that the hole was there until he hit the bottom of it with his car bottom-side-up. The condition of the road itself was notice that would cause a prudent driver to proceed with caution. The hole was there to be seen by anyone using his eyes. So far as the use of his eyes is concerned, the driver just as well might have been driving blindfolded.
The majority holds that this is not evidence of contributory negligence sufficient to go to a jury. I disagree. What excuse did the driver of the car give for not seeing what could be seen? He gave two. He testified that the next day he visited the scene and admitted that the hole was visible but “not very far.” He testified that sitting in the car with “the long nose of the car out in front” it would interfere with his vision “a little” going directly toward the hole. The majority does not give credence 'to that statement. The driver makes no mention of shadows in his reconstruction of the event the day following the accident. Much later at the trial “shadows” come into the picture in the way now to be mentioned. The majority excuses his failure to see what was there to be seen because the weeds at the side of *24the road hid the hole and the low sun behind the weeds “shaded the east edge of the washout.” But the driver of the car testified on cross-examination that the weeds on the road did not interfere with his vision “between me and the hole.” That ought to take care of the matter of the weeds. But plaintiff’s counsel on redirect in a leading question had him affirm that the weeds on the east side of the hole did not interfere with his vision. He then was asked if he saw any weeds on the “west side of the excavation.” He answered (and here is the only evidence I find as to shadows): “I’d tell you how I’d have to describe that. I couldn’t describe it as actually seeing weeds, because it was a shadow. The weeds were there and the sun was low enough.that it cast a shadow right there; you might say, in the shadow of the weeds. There was weeds there, but I couldn’t describe them as weeds because there was a shadow.” I submit that he did not "testify that he could not see the hole because of a shadow; that he did not testify that the shadow covered the hole, and most certainly it is not evidence that the “east edge of the washout” was shaded. I submit also that the statement of the majority that “* * * the tall weeds along the. west side would have cast a shadow, which doubtless would entirely conceal the hole from casual observation of an ordinary driver” is a mere argumentative supposition, not supported by the evidence. Further, if it is an inference that can be properly drawn from the evidence, then it is an inference for a jury to make and not for a court to make. The question as to whether there was a shadow there that interfered with the vision of the hole is at best a jury question. If, however, there was a shadow there which materially impaired or wholly destroyed the driver’s visibility, then that shadow constituted a condition on the highway which imposed on the driver of the automobile a duty to exercise a degree of care commensurate with that circumstance. Fairman v. Cook, 142 Neb. 893, 8 N. W. 2d 315. In Dickenson v. County *25of Cheyenne, 146 Neb. 36, 18 N. W. 2d 559, we held that fog which made it more difficult to see imposed an additional reason for the exercise of care commensurate with the surrounding circumstances. The shadow, if it existed, imposed an added duty rather than furnishing an excuse for the negligent driving here involved.
In Sharp v. Chicago, B. & Q. R. R. Co., 110 Neb. 34, 193 N. W. 150, a motorist driving down a highway on a dark, windy, dusty night ran into a pillar located in the center of a highway. He testified he was looking. We held that the issue of contributory negligence was for the jury.
In Tutsch v. Omaha Structural Steel Works, 110 Neb. 585, 194 N. W. 731, we had a driver who testified that he was proceeding at night at a reasonable speed with his lights on, and looking saw a ditch across a road. He tried but was unable to stop. We held that the question of contributory negligence was for the jury.
In Pratt v. Western Bridge & Construction Co., 116 Neb. 553, 218 N. W. 397, a driver going down a highway at night turned to avoid hitting a pedestrian, and ran into a hole in the side of a roadbed which was so filled with weeds that the lights of the car did not reveal its condition. We held that the matter of contributory negligence was for the jury.
In Cromwell v. Fillmore County, 122 Neb. 114, 239 N. W. 735, there were holes washed in the road. The driver testified that his lights were on; he was looking; he used his brakes; he was unable to see the ruts in time to stop. There were no barriers nor warnings. We held that the evidence was sufficient to go to the jury on the question of contributory negligence.
In Dickenson v. County of Cheyenne, supra, a driver on a foggy night ran into a dead-end road. We held there was contributory negligence as a matter of law.
Admittedly, these are night cases where darkness required care commensurate with the circumstances, but here we have a driver who had the advantage of *26daylight and did not use it. He did not look; he did not see what was to be seen.
We have held that want of ordinary care and not knowledge of the danger is the test of contributory negligence. Welsh v. City of South Omaha, 98 Neb. 148, 152 N. W. 302; Klement v. Lindell, 139 Neb. 540, 298 N. W. 137; Grantham v. Watson Bros. Transportation Co., 142 Neb. 362, 6 N. W. 2d 372, on rehearing 142 Neb. 367, 9 N. W. 2d 157; Frazier v. Anderson, 143 Neb. 905, 11 N. W. 2d 764; Tite v. Omaha Coliseum Corporation, 144 Neb. 22, 12 N. W. 2d 90. Accordingly, the lack of familiarity with the road and the lack of knowledge of the “great washout” which the majority stresses are not the tests and do not excuse.
We are not ‘here required to determine whether or not this driver was guilty of contributory negligence as a matter of law. We are asked to determine that this is a jury question. I hold that it is that at least, and would reverse and remand the cause.
Yeager and Chappell, JJ., concur in this dissent.