dissenting.
I disagree with the majority of the court upon their evaluation of the evidence in this case and with their application of § 46-228, Code 1950, to the proved facts.
The two issues presented were whether or not Simmons was guilty of actionable negligence and whether or not Craig was guilty of contributory negligence as a matter of law.
The evidence was conflicting in some particulars, and different inferences could be reasonably drawn from the proved facts. The jury resolved both issues in favor of plaintiff, Craig, and the trial court entered judgment on that verdict.
The issue of whether or not Craig was guilty of contributory negligence was fairly put to the jury by the following Instruction A:
“The court instructs the jury that the Code of Virginia forbids a driver to drive to the left side of the center of a highway in passing another car, unless such left side is clearly visible and free of oncoming traffic for a sufficient distance ahead to permit such passing to be made in safety.
“And the court further instructs you that if you believe from the evidence in this case that Craig undertook to pass the car ahead on Route 24 when it was apparent, or should have been apparent to a reasonably prudent man under similar circumstances, that the left side was not clearly visible and free of oncoming traffic for a sufficient distance ahead to permit him to pass in safety, then Craig was guilty of negligence as a matter of law; and if you believe such negligence proximately contributed to his injury, your verdict must be *346for the defendant Simmons on the claim of Craig.”
Craig is now entitled to have all conflicts in the evidence and all reasonable inferences deducible from the evidence resolved by us in his favor. Unless the judgment is plainly wrong or unsupported by evidence, it should not be disturbed. Section 8-491, Code 1950; Orndorff v. Howell, 181 Va. 383, 25 S. E. 2d 327; Burks Pleading and Practice, 4th ed., § 325, pp. 616, 617, and notes 94 and 96.
In the majority opinion it is conceded that the evidence was sufficient to find that Simmons was driving his car without having its headlights on at a time when the visibility was such as to require that the headlights be burning. The evidence shows that Craig, who was familiar with the highway, did not undertake to pass the car preceding him until he had reached a straight stretch of road where he thought he could make that movement in safety. It also shows that witness Chisom, the driver following Craig, who was familiar with that stretch of road reached the same conclusion. He had also undertaken to pass the unidentified car which was preceding Craig and had pulled his car to the left and was entering the left lane when he saw the headlights on Simmons’ oncoming car flash on when it was only a few car lengths away from Craig’s vehicle. It thus appears that not only Craig but Chisom, who was driving under exactly the same conditions as was Craig, was undertaking to pass the same car, and he likewise failed to see Simmons’ unlighted vehicle.
Under these facts the majority opinion relies upon § 46-228, Code 1950, which reads:
“The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety and such overtaking vehicle shall give way to an oncoming vehicle.”
The opinion then states that this section “makes statutory the normal requirement that ordinary and reasonable care should be exercised in making such movement.” With that construction of the section I agree. But the opinion then holds that it was negligence as a matter of law on Craig’s part to undertake to pass the vehicle preceding him without seeing the unlighted car and avoiding it. In other words, § 46-228 is construed so as to impose the burden upon Craig of passing at his peril. This application of the section makes Craig an insurer of his own safety when he undertakes to pass as *347against the danger of being struck by an oncoming unlighted car.
When visibility requires the use of headlights, I do not think that § 46-228 was intended to impose upon the passing driver the absolute and unqualified burden to refrain from passing until he is able to see and avoid an oncoming unlighted car.
Simply stated, the facts are that when it was raining and dark, Craig undertook to pass at a reasonable and lawful speed a car preceding him and he was struck head on by another unlighted vehicle. In fact, the evidence shows that Craig had entered the passing lane and was abreast of the car that had been preceding him and only two or three car lengths from Simmons’ oncoming vehicle when Simmons turned on the headlights of his until then unlighted car. It being proved that Simmons operated his car without headlights until it was in dangerous proximity to Craig’s lighted truck,. I think that reasonable men might differ on the question of whether or not Craig should have seen the unlighted vehicle and refrained from undertaking to pass the car ahead of him. It was not negligence as a matter of law for Craig to assume that no car would be operated at that time and under the conditions obtaining without having its headlights burning. The observation of Mr. Justice Browning in Virginia Electric & Power Co. v. Steinman, 177 Va. 468, 473, 14 S. E. 2d 313, which is quoted in the majority opinion is, I think, pointedly appropriate:
“It is well settled, and this court has said so time and again, that the question of negligence, indeed all kinds of negligence—primary, contributory, continuous and concurring—is one for the jury to determine. They are questions of fact, and the jury is the trier of such questions. It is only when the issue is one about which reasonable persons cannot differ—the question so plain in the meaning and interpretation that should be given to it—that no doubt is admitted of its legal significance and effect, that it becomes a question of law for the courts to determine.”
However, after quoting this applicable paragraph, the effect of the majority opinion is to invade the province of the jury and usurp its powers when it holds on the facts and circumstances in evidence that Craig was guilty of negligence as a matter of law when he undertook to pass the car preceding him and was struck by Simmons’ unlighted vehicle. It was, I think, within the province of the jury, and not for this court, to determine on all the facts and circumstances whether or not Craig was guilty of contributory negligence.
Buchanan, J., joins in this dissent.