ON Petition to Behear.
The defendant has petitioned the Court for a rehearing complaining that in the original opinion we reaffirmed the ruling of the Court of Appeals in Donaho v. Large, 25 Tenn. App. 433, 158 S. W. 2d 447, and then proceeded to “cut the heart out of it” by holding that it had no application. Contention is further made that we overlooked the well settled principle of law that “one who claims the benefit of a sudden peril must not have caused it”.
*534Petitioner is merely rearguing the facts of the case in his contention that we have ‘ ‘ cut the heart ont of the substantive law as declared in Donaho v. Large”. In that case the conclusion was inescapable that the defendant, in driving his truck upon the highway, was guilty of no negligence whatever. After quoting from the plaintiff’s testimony, which was an admission of unexplained contributory negligence, the court very properly held that his conduct was the proximate cause of the accident. In the case at bar there is undisputed evidence, as stated by Judge Hale in his dissenting opinion, that defendant’s truck “was being driven at an excessive speed at night, over a narrow bridge largely used by pedestrians and when all visibility through the windshield was prevented by an accumulation of mud except for a space of eight inches in diameter on the left side”. The truck was driven 75 or 80 feet after striking the deceased and his companion before it came to a stop. It is doubtful if the driver of the truck ever saw the boys on the bridge, and no reason is given for not having seen them.
Contention is further made that there was no evidence that the defendant knew of “traffic conditions”, and that we erroneously reversed the Court of Appeals “upon the basis of presumptions”, that is, that he knew of such conditions. In response to this contention we need only to say that if he was not familiar with traffic conditions he had no business driving a truck upon the public highway. Moreover, we think it not at all presumptuous for the Court to hold that an important duty devolving upon the defendant, whether he was familiar with traffic conditions or not, was to keep a lookout ahead and to see that which was plainly to be seen, that *535the deceased was using the bridge as a walk-way and that it was as unsafe for him to he upon the left side as upon the right. The fact that the deceased was upon the right of the bridge certainly gave the defendant no right to run him down and kill him. He did not cross the bridge at his peril. Whether or not young Standridge was in the exercise of due care in entering upon the bridge under the circumstances was an issue for the jury to decide.
While the holding in Donaho v. Large, that one who violates the law of the road is guilty of negligence per se, is sound as an abstract proposition of law, it is not applicable to the facts of the instant case.
The citation of authority by petitioner in support of the proposition that “one who claims the benefit of a sudden peril must not have been responsible for it” has no application to the case at bar for the reason that the deceased was not responsible for the peril. The sudden peril was due to the passing of defendant’s truck and another automobile upon the bridge after the deceased had entered upon it.
The petition to rehear is denied.
All concur.