(dissenting). It is apparent that this accident happened because of the failure of the' plaintiff to appreciate the fact that the truck was standing still instead of moving on the highway. Had the truck been moving at a moderate rate of speed, as the plaintiff assumed, the accident would not have happened. It is held that' because he failed to appreciate this fact he is guilty of contributory negligence as a matter of law. To this I do not assent. His duty in the premises is not referable to any statute, nor can reference be made to any established rule of law which he violated. The duty imposed upon him under the circumstances was the exercise of that degree of care which the great mass of mankind would exercise under the same or similar circumstances. But that degree of care was a matter for the determination of the jury. It can be easily determined that had he exercised a greater degree of care than he did, the accident would not have happened, but it does not establish the proposition that he was bound to exercise that higher degree of care. I think minds may reasonably differ upon the proposition of whether he could properly assume that the truck was moving instead of standing upon the concrete highway, especially in view of the fáct that a standing truck upon the highway is not only an unusual but a rare occurrence. I think the jury was warranted in finding that the plaintiff exercised the same degree of care that the great mass of mankind would have exercised under the circumstances. I therefore dissent.
I am authorized to state that Mr. Justice Fowler and Mr. Justice Wickhem concur in these views.