The majority opinion determines that the judgment should be reversed because the trial court failed to give a requested instruction that the defendant Carlson was negligent as a matter of law. That finding appears to be based upon the defendant’s failure to see the Kasper automobile approaching from the north and the statement that the patrolman and Beyer testified the defendant made following the accident.
As we stated today in Jones v. Goeden, post p. 177, 180, 440 N.W.2d 199, 202 (1989), “Generally, the failure to see an approaching vehicle is not negligence as a matter of law unless the vehicle is undisputably located in a favored position. Getzschman v. Yard Co., 229 Neb. 231, 426 N.W.2d 499 (1988).” As I understand the record in this case, there is no evidence which undisputably locates the Kasper vehicle in a favored position.
The failure of a motorist to maintain a continuous lookout is not such evidence of negligence as would bar a recovery unless it be conclusively shown that the other vehicle was in the area of danger. Pupkes v. Wilson, 172 Neb. 15, 108 N.W.2d 220 (1961). The driver of a vehicle is not required to notice every car that happens actually to be within his range of vision, but only those within that radius which denotes the limit of danger. Before a verdict can be properly directed in such a case, the oncoming vehicle must be definitely located in a favored position, that is, that it was within that radius which denotes the limit of danger; otherwise, the question becomes one for the jury. Pupkes v. *177Wilson, supra. See, Hellmeier v. Policky, 178 Neb. 170, 132 N.W.2d 760 (1965); Jershin v. Becker, 217 Neb. 645, 351 N.W.2d 48 (1984); Treffer v. Seevers, 195 Neb. 114, 237 N.W.2d 114 (1975).
The case is further complicated by the fact that although the appellant has assigned as error the failure to give the requested instruction, the transcript does not contain the instructions of the court on which the case was submitted to the jury. See Malcom v. Hansen, 32 Neb. 50, 48 N.W. 883 (1891).
So far as the defendant’s statement to the patrolman and Beyer is concerned, the defendant’s testimony as to how the accident happened, together with his deposition statement, offered by the appellant, that defendant’s foot did not “get stuck between the clutch and brake,” was a sufficient denial to make it a question for the jury as to how the accident happened.
Caporale, J., joins in this dissent.