concurring.
I concur with the majority opinion in this case, but believe that additional remarks are appropriate in light of the case of C. C. Natvig’s Sons, Inc. v. Summers, post, p. 741, 255 N. W. 2d 272 (1977), which involved a factual situation similar in many respects to that in the present case, but where this court reversed a summary judgment entered against a party which had been found negligent under the range of vision rule.
In C. C. Natvig’s Sons, Inc. v. Summers, supra, the trial court found that the plaintiff’s driver was guilty of negligence as a matter of law and granted summary judgment to the defendants because plaintiff’s driver was unable to stop his vehicle within his range of vision, and collided with defendants’ vehicle. This court reversed the judgment of the trial court on the grounds that the record showed the defendant driver may have been negligent, and that a factual question existed as to whether the negligence of plaintiff’s driver was slight and the negligence of the defendant driver, if any, was gross in comparison. See section 25-1151, R. R. S. 1943, the comparative negligence statute in Nebraska. This court stated: *728“The range of vision rule was never intended to be arbitrary. * * * Although in some circumstances it may be proper for the trial court to determine as a matter of law that a person violating the range of vision rule is guilty of negligence more than slight, so as to prevent recovery, such as where the other party was not negligent in any respect, yet we have never held that a driver violating that rule is guilty of negligence more than slight in every circumstance, regardless of the actions or negligence of the person with whom he collides.”
In the present case, as the majority opinion indicates, the plaintiff could not be found negligent. Since defendant was guilty of negligence under the range of vision rule, plaintiff is entitled to judgment in his favor. In C. C. Natvig’s Sons, Inc. v. Summers, supra, the record showed that the defendant driver may well have been guilty of active negligence. Defendants’ vehicle in that case was not disabled at the time of the collision, but was being pulled from the side of the road and was blocking the entire road. Defendant driver took no precautions and gave no warning to oncoming drivers, although he knew that the location was dangerous due to the geography and weather conditions. In such a situation, a factual question was raised as to comparative negligence of the parties, and summary judgment was inappropriate.
Therefore, although the two cases may appear to be inconsistent at first glance there is a fundamental difference which distinguishes them. The present case should not be construed as holding that a party found to be negligent under the range of vision rule is guilty of negligence more than slight as a matter of law in every situation, regardless of the negligence of the person with whom he collides.