dissenting:
I dissent. The cause of action arose May 27, 1962, trial was held commencing May 20,1963, motion for new *231trial granted by the trial court July 10,1963. Thereafter, NRCP (59) (a) (7) was removed by the supreme court as a ground for new trial. Our consideration should be directed to the rules as they existed at the time of the trial of the cause and the motion for new trial.
In Nevada Rock and Sand Co. v. Grich, 59 Nev. 345, 93 P.2d 513, the court stated that a verdict cannot be set aside by a trial court where no irregularity or error is shown and the verdict or decision is in accordance with and justified by the evidence. Further, in City of Reno v. Van Ermen, 79 Nev. 369, 385 P.2d 345, the court said, “If the verdict rests on substantial evidence, it should stand; if it does not, it should be set aside.”
Agreed, there is no serious contention but that the appellant was negligent. Contrary, however, it is seriously contended as a matter of law whether or not the decedent was contributorily negligent.
Decedent was driving along a rural road during the twilight hours at a speed not unreasonable under the circumstances. He was not intoxicated nor is it claimed that he was under the influence of liquor. He came out of a dip in the road into an unusual situation where he could see the lights of one parked truck but not necessarily the other parked truck. His attention was drawn to headlights at least of the one truck on his left and a light from a spotlight shining on the substation which was under repair. There was a smaller truck parked immediately off the roadway on his right with the headlights shining to his right. There were no flares to warn that it was there. A small fluorescent decal was on the door panel of that truck but what with all the driver was called upon immediately to see, the decal can hardly serve as an adequate warning.
Decedent was 62 years old. His perception and reaction to a suddenly confronted danger created by the negligence of the appellant can be far different from the perception and reaction of the others who testified and, in my opinion, still meet the standards of an ordinarily prudent man under the circumstances. It seems apparent that the decedent swerved to the right to avoid the obstruction on the left. It appears to me to have been entirely normal to have done so.
*232I agree with the trial court that the verdict was not in accordance with and justified by the evidence, nor was the evidence substantial in favor of contributory negligence. To meet the test of the concurring opinion in Van Ermen, the evidence of contributory negligence did not preponderate in favor of the verdict.
Badt, C. J., being disqualified, the Governor commissioned Honorable David Zenoff, Judge of the Eighth Judicial District Court, to sit in his place.