(dissenting). I am of the opinion that the case was properly disposed of by the trial court and that the judgment should have been affirmed.
The law of the road as it was at the time of this accident required the driver of a vehicle to drive the same upon the right half of the highway except when overtaking and passing another. Sec. 85.01 (10), Stats. 1927.
*243Appellant was guilty of contributory negligence. His want of ordinary care appears from his failure in watchfulness and lack of precaution to avoid danger which was, or ought to have been, apparent to him as he drove his motorcycle in front of respondent’s truck. The respondent was held to be negligent and his acts are not reviewed here.
Conceding the difficulty of defining prudence or ordinary care, and when practically defined of applying it to a state of facts, still I can see no reason for excusing appellant under the circumstances disclosed in this record. Concerning seeing respondent’s truck appellant’s testimony is :
“I didn’t look to see whether there was a driver in the driver’s seat. It was practically on the concrete when I saw it first, in a position to go out on the highway. A person wouldn’t think that he was going to start with somebody coming down the road. I didn’t think it was necessary to slow down to find out whether he was going to start. I didn’t go over to the right side of the road, I kept about where I was. There was nothing to prevent my getting over to the right side of the road. The concrete was clear on the other side. These motorcycles turn .fairly easy. I suppose I would have avoided the accident if I had turned my motorcycle over within a foot.”
The concrete at the point of collision was twenty-four feet wide. The appellant was riding within four or five feet at the most from the left edge of the concrete. There is suggested as a reason for his going to the left of the center of the traveled track that he was- about to pass a milk truck. The record does not bring that one sufficiently into the picture so that it can constitute a justification of his conduct at that point or excuse him from failure to use ordinary care concerning those who might be about to enter the highway from his left. His testimony is r
“It wasn’t necessary to -change my position of my motorcycle in the road-because of any truck; this truck was too far ahead of me to do anything. I didn’t hlow my horn for *244the milk truck, I was too far away from it, and he wouldn’t have heard it if I had blowed it.”
There is other evidence of a similar nature and to the same effect. The presence of respondent’s truck at the side of the road apparently about to enter upon the highway required of appellant more than a passing glance if he is to be credited with having exercised ordinary care. See sec. 85.12, Stats. 1927.
I am authorized to state that Mr. Justice Fritz joins in this dissent.