{dissenting).- I concur in this court’s conclusions that proof of the dying declaration was not admissible, and that the evidence presents issues of fact for the jury as to the defendant’s negligence. However, in my opinion the trial court, in passing upon the motions after verdict, rightly concluded that the evidence necessitates finding that Schabo was guilty of negligence which proximately contributed to produce his injury.
Under the evidence which was most favorable to plaintiff, defendant’s truck as it approached the point of collision did not extend more than six inches over the center line of the twenty-foot-wide concrete roadway. That left Schabo nine and one-half feet of clearance between defendant’s truck and the rural mail carrier’s car, which was at a standstill on the shoulder at the edge of the concrete. With an available nine and one-half foot wide passageway, and nothing to prevent Schabo’s observing and safely passing defendant’s truck, it *193was dearly negligence for Schabo to drive so close to the truck as to collide with it. His negligence in that respect proximately contributed as much as any negligence of the defendant in causing Schabo’s injury; and consequently the defendant is entitled to judgment dismissing plaintiff’s complaint.
Therefore I dissent from this court’s decision reversing the judgment and ordering a new trial.
I am authorized to state that Mr. Chief Justice Rosen-berry joins in this dissent.