(concurring).
As the plaintiff approached the intersection, he looked in both directions, shifted into second gear and proceeded across at 5 to 10 miles per hour. Plaintiff had gone about two-thirds of the way across the intersection so that the front of his car had reached the fence line on the west side of the north south road, upon which defendant was approaching from the north, when plaintiff’s car was struck in the right rear by defendant’s truck. The investigating officer estimated that the defendant was traveling between 40 and 50 miles per hour, basing his opinion upon defendant’s skid marks and the damage to both automobiles. Thus, the defendant was traveling approximately seven times faster than the plaintiff. Evidence concerning the presence of a dirt pile and an orchard which affected visibility was considered by the trial judge, sitting as the fact finder. Judgment was rendered for the plaintiff.
I believe the judgment should be affirmed because the great disparity in speed between these two automobiles places this case in the Hess v. Robinson, 109 Utah 60, 163 P. 2d 510 category rather than that of Bullock v. Luke, 98 Utah 501, 98 P. 2d 350. Although the road defendant was traveling is a better road permitting greater speed, there was no stop sign at this intersection. Both roads are gravel. Whether the plaintiff upon entering the intersection should have observed the defendant’s car, which, could have been some 250 feet away, or if upon discovering it plaintiff reasonably could have assumed that he had the right of way and that the defendant would slow up to let him across are all questions of fact. Reasonable minds can and certainly do differ in such a situation as this. I cannot say there was error in the fact finder’s conclusions.