March 8, 1962, Mark Edward Johnson was riding his bicycle to school on the Olympic Highway near the Central Park community. He was injured when he rode across the center line of the highway, striking the left front fender of an oncoming panel truck operated by Cecil Gower and belonging to the Northern Pacific Railway Company.
*615Neal Johnson, as guardian ad litem for his minor son, commenced this action for damages against the Northern Pacific Railway Company, contending that its driver was negligent. The railway company answered the complaint, denied negligence, and, as an affirmative defense, alleged that Mark’s injuries resulted solely from his own negligence. The court instructed the jury that the defendant Northern Pacific Railway Company was negligent as a matter of law. The jury was also instructed on the issue of Mark’s alleged contributory negligence. The jury returned a verdict for the plaintiff.
From the judgment entered upon the verdict, the defendant has appealed.
Appellant urges that the court erred in instructing the jury that the appellant’s driver was negligent as a matter of law. The evidence was substantially as follows:
The áccident occurred March 8, 1962, a bright, clear day, between 8:30 and 8:50 a. m., several miles from Aberdeen. The highway in this vicinity is straight, and visibility is uninterrupted for several thousand feet. At the site of the accident, a “T” intersection, the Olympic Highway runs approximately east and west and is intersected by Hill Road from the south. The paved portion of the highway is 10 feet on each side of the center line. A blacktopped shoulder extends along each side of the highway.
The appellant’s driver, Cecil Gower, was familiar with the highway, having driven this route two or three times a week for several years while in the employ of the defendant. On the day in question, he was proceeding in an easterly direction on the Olympic Highway and, as he approached the Hill Road intersection, he noticed Mark Edward Johnson, on a bicycle, approaching on the opposite shoulder of the highway some 400 to 500 yards distant. Mark was proceeding to the school located on Hill Road some four or five blocks from the intersection. There were no signs on the highway indicating a school zone. Mr. Gower was driving the appellant’s Chevrolet pickup on his right side of the highway, some two feet from the center line, *616and at a speed of approximately 40 to 45 miles an hour, in a 60-mile zone. In describing the accident, Mr. Gower testified:
Q. Did you notice any other children besides this particular boy on the highway? A. Not that I can recall. No. Q. At that particular time. Now, we are still at this particular point of time when you were adjacent to the Central Park store. Do you remember where this boy that you saw was in relation to Hill Road, which is a T-shaped intersection? A. You mean do I remember how far east or west in relation to the intersection? A. Yes. A. He was east of the intersection. How far, I wouldn’t hazard a guess. Possibly one hundred yards. Q. Now, when you observed the boy, what did he do as you were traveling east? A. What did he do? Q. Yes. A. Well, he swerved the vehicle across the highway in front of me. Q. Did you observe him at all particular times? A. Well, you mean— Q. (Interrupting) As you were traveling east on the highway, did you notice the boy doing anything in particular? A. No. Q. Were you watching him all the time? A. Well, you can’t watch one particular place every minute and drive. I glanced at him as driving conditions would permit. . . . Q. [cross-examination] Further than that when you last saw him. Well, would it have been one hundred feet from the intersection of Hill Road and the highway when you last looked at him? A. When I observed the boy I was about fifty feet from him.
Frank Payne, Jr., who was driving behind the appellant’s pickup, testified that the appellant’s driver was proceeding at a moderate speed, to the right of the center line; that he swerved further to the right as Mark rode his bicycle into the left front fender of the pickup, and that he brought the vehicle to a stop promptly.
An expert witness testified that Cecil Gower stopped the vehicle well within the allotted distance for a panel truck traveling 40 to 45 miles an hour.
Mark suffered retrograde amnesia and could not remember the events which occurred when he rode his bicycle into the path of the oncoming truck. He did testify that he was nearly 12 years old and a student in the sixth grade; that he had ridden his bicycle to school on this highway for *617three years, and that he was familiar with the rules of the road and had always observed them. He remembered that only a split second before the accident the following occurred:
Q. . . . Now this morning that the accident occurred, do you have any recollection after you got on the shoulder of the road, do you have any recollection of seeing anybody else? A. I saw someone. I slightly remember seeing someone and waving to them. Q. This was while you were riding down the shoulder of the road? A. What? Yes. Q. This was while you were riding down the shoulder. This someone was who, a person? A. Yes. Q. Was it a school chum of yours? A. Someone I had known at school. Q. And he was on the other side of the road? A. Yes. He was on the other side of the road, turning into Hill Road. He had come from the other side. Q. He was already headed down Hill Road, turning into Hill Road and heading down Hill Road. He was on his bike? A. Yes. Q. And you waved at him? A. Yes. Q. You remember waving at him? A. (Nodding affirmatively)
Although there was no evidence to dispute the testimony that appellant’s driver did watch the boy approaching, “as driving conditions would permit,” the trial court held, as a matter of law, that the appellant’s driver “failed to exercise reasonable and ordinary care to keep a proper lookout for the safety of Mark Edward Johnson.” The trial judge, in commenting on the evidence in this regard, concluded:
the believable testimony, is that he wasn’t actually ever aware again of that boy sufficiently to be concerned about him until he is practically on the center line of the highway in front of him. (Italics ours.)
The evidence established that appellant’s driver, Cecil Gower, had kept the boy under observation as continuously “as driving conditions would permit”; that he had observed Mark, riding his bicycle on the opposite side of the highway, at least 3 times within approximately 22 seconds at distances ranging from 500 yards to 50 feet, and that Mark, at the “T” intersection, suddenly rode his bicycle so abruptly to his left in front of the pickup that Mr. Gower was unable, even by swerving his vehicle, to prevent the *618bicycle from striking the left front fender. His testimony on this issue was that, “As soon as I saw him, why I started to take measures to get out of his road. I applied my brakes and I swerved hard to the right.” Reasonable minds could conclude from these facts that appellant’s driver was not negligent. Wilkinson v. Martin, 56 Wn.2d 921, 349 P.2d 608 (1960), and cases cited.
The legislature has enacted a special statute relating to those highways where cyclists are permitted to ride bicycles. RCW 46.47.020 provides in part:
Every person riding a bicycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to a driver of a motor vehicle
A minor on a bicycle is subject to the same rules of the road as a driver of a motor vehicle. Until such time as the minor is observed in a position of peril, a motorist has a right to assume that the minor will observe the rules of the road. This court has said that a motorist must exercise a higher degree of care for the safety of a minor using the highway, when the motorist observes the minor in a position of peril. Shellenberger v. Zeman, 48 Wn.2d 885, 297 P.2d 247 (1956). Whether a person has exercised due care for the safety of other users of the highway is a factual issue to be determined only by the trier of the facts.
In the instant case, the jury was summoned to determine this factual issue. When the judge said that “ . . . the believable testimony, is that he wasn’t actually ever aware again of that boy sufficiently to be concerned about him,” he usurped the function of the jury. The court erred in instructing the jury that appellant’s driver was negligent as a matter of law.
Appellant next contends that the facts establish that Mark was guilty of contributory negligence as a matter of law, and that the cause should therefore be dismissed. We do not agree. The legislature, in enacting the bicycle statute, has provided that the issue of contributory negligence on the part of a minor under 16 years of age is to be *619resolved by the trier of the facts. In this regard, RCW 46.47-.090 provides in part:
Provided, That no violation of this chapter by any child under the age of sixteen years, or by a parent or guardian of such child shall constitute negligence per se in any civil action brought or defended by or in behalf of such child. (Italics ours.)
Mark was nearly 12 years of age. The issue of contributory negligence was presented to the jury. In finding no contributory negligence, the jury could have been influenced by the court’s instruction that appellant’s driver was negligent as a matter of law. Upon retrial, the issues of primary negligence and of contributory negligence are to be submitted to the jury under proper instructions. Appellant’s requested instruction predicated upon Shellenberger v. Zeman, supra, and RCW 46.47.020 should be given.
The judgment is reversed, and the cause remanded with instructions to grant a new trial.
Hill, Donworth, Hunter, and Hale, JJ., and Barnett, J. Pro Tern., concur.