(dissenting) :
The majority opinion directs a reversal of the judgment of the trial court on the alleged errors contained in instructions numbered 30 and 34.
Instruction No. 30, which is quoted in the majority opinion, correctly states the law. In line 2 of the instruction the jury is advised that if the wrecker driver, Chandler, was exercising ordinary care, then and only then he might assume that every other person would also be exercising ordinary care. The argument contained in the majority opinion to the effect that a jury might find that the operator of the wrecker should anticipate that a person exercising ordinary care would be unable to avoid colliding with the wrecker, does not seem to conform to the law as contained in the instruction.
In the absence of any circumstances imposing such a duty, the operator of a motor vehicle is not bound to anticipate negligence or unlawful conduct on the part of other persons or motorists in their use of the highway. On the contrary, provided there are no circumstances which should reasonably put him on notice to the contrary, a motorist has the right, to some extent at least, to assume and to act on the assumption that other users of the highway will obey the law, will comply with statutory requirements and will, in general, exercise due or at least reasonable and ordinary care. A motorist’s right to assume due care and observance of the law by other users of the highway, is qualified by his duty to exercise due care himself, or such care as is commensurate with the dangers to be reasonably anticipated. The right of motor vehicle operators to rely on the care of others is restricted to operators who themselves are exercising reasonable care. West v. Laurence, 81 Cal.App.2d 89, 183 P.2d 31 (1947); Nicholson v. Nelson, 27 Wash.2d 472, 178 P.2d 739 (1947); Kindscher v. Dyer, 78 Cal.App.2d 323, 177 P.2d 782 (1947); Jones v. McCullough, 148 Kan. 561, 83 P.2d 669 (1938); Lovett v. Gill, 142 Or. 534, 20 P.2d 1070 (1933); Hickerson v. Jossey, 131 Or. 612, 282 P. 768, 283 P. 1119 (1929); 60 C.J.S. Motor Vehicles § 249.
A user of the highway is not guilty of contributory negligence in assuming, in the absence of knowledge or notice to the con*34trary, that others using it in common with him will comply with the law and use ordinary care to avoid injuring him; but he cannot, for that reason, omit any of the care which the law otherwise demands of him. Beck v. Sirota, 42 Cal.App.2d 551, 109 P.2d 419 (1941); McCulloch v. Horton, 105 Mont. 531, 74 P.2d 1, 114 A.L.R. 823 (1937); 61 C.J.S. Motor Vehicles § 459.
Certainly, taking the two paragraphs of the instruction together, the jury could not have understood that the wrecker driver, Chandler, was excused from exercising ordinary care as, of course, if he failed to exercise ordinary care, he would be guilty of negligence. It is not felt that this instruction was in any way prejudicial to any of the parties. The majority opinion contends that instruction No. 30 was prejudicial to the plaintiff, Hawkins, when in reality the Hawkins appeal was only to be considered by the court in the event of a reversal of the judgment by Hawkins against the defendant Papes. This writer cannot conceive how the instruction could be prejudicial to the defendant Papes when it correctly states the law as set forth heretofore.
If the instruction tended to favor the defendant Chandler, the wrecker driver, who was excused from liability by the jury, then the rule announced by the Supreme Court of California in the case of Johnston v. Peairs, 117 Cal.App. 208, 3 P.2d 617, 618 (1931), would apply as follows:
“As is not unusual in such cases, the principal dispute seems to have been between the respective defendants, each of whom endeavored to place the blame upon the other. * * * ‘It is clear that the liability of appellant * * depended entirely upon the answer to the questions whether he himself was or was not negligent, and whether or not such negligence, if it existed, proximately caused or contributed to the injuries complained of. These questions are wholly independent of the question as to whether or not his codefendant * * * was also liable.’ ”
Error as between joint tortfeasors should not be considered by the court to the prejudice of the position of the respondent.
“if one joint tortfeasor was negligent, such negligence was, as a matter of law, at least a concurrent cause of the plaintiff’s injury, and even if a codefendant is exonerated, the defendant is not prejudiced, there being ordinarily no right of contribution between joint tortfeasors. * * * a plaintiff’s right of action against joint tortfeasors is joint and several and thus he may sue all or any one of them, so that where the complaining defendant’s liability to the plaintiff is established, his rights *35between himself and the plaintiff are not affected by errors committed in favor of a codefendant, and if the co-defendant is exonerated the complaining defendant’s position is no worse than it would have been had a joint judgment been rendered, for the plaintiff could have proceeded against such defendant alone for satisfaction of a joint judgment, and, there ordinarily being no right of contribution between joint tortfeasors, the defendant could not have looked to the codefendant for payment of any part of the judgment. * * * Except for Alabama * * * all jurisdictions in which the question has arisen subscribe to the view that a defendant cannot, on appeal or writ of error, complain of an instruction favoring a codefendant which merely had the effect of preventing a joint judgment.” Annotation, 60 A.L.R.2d 526, 527, 528.
Gensler-Lee of Reno v. Geertson, 73 Nev. 328, 318 P.2d 1113 (1957); Hession v. City and County of San Francisco, 122 Cal.App.2d 592, 265 P.2d 542 (1954); Peters v. City and County of San Francisco, 41 Cal.2d 419, 260 P.2d 55 (1953); Mountain States T. & T. Co. v. Consolidated Freightways, 121 Utah 379, 242 P.2d 563 (1952); Laubscher v. Blake, 7 Cal.App.2d 376, 46 P.2d 836 (1935); Brunetto v. Spediacci, 124 Cal.App. 252, 12 P.2d 151 (1932); Johnston v. Peairs, 117 Cal.App. 208, 3 P.2d 617 (1931); Harju v. Market Street Ry. Co., 114 Cal.App. 138, 299 P. 788 (1931); Crabbe v. Rhoades, 101 Cal.App. 503, 282 P. 10 (1929).
In regard to the claimed error in instruction No. 34, it should be pointed out that the Idaho Supreme Court, in three previous cases, has affirmed the language used in this instruction word for word.
Quoting from the recent case of O’Connor v. Black, 80 Idaho 96, 326 P.2d 376 (1958) Justice Smith used the following language:
“This Court in Maier v. Minidoka County Motor Co., 61 Idaho 642, 650, 105 P.2d 1076, 1079, stated the rule to be:
“ ‘Generally it is negligence as a matter of law, or at least strong evidence of negligence, for a motorist to operate his automobile on a highway at such a speed that the automobile cannot be stopped within the distance within which objects can be seen ahead of the automobile. Goodman v. Wishy, 152 Kan. 341, 103 P.2d 804. This court has placed its approval upon the doctrine that one driving at nighttime must proceed at such rate of speed that he may be able ordinarily to stop short of an *36object appearing in the radius of his lights.’ (Emphasis supplied).
“And in Pittman v. Sather, 68 Idaho 29, 34, 188 P.2d 600, 603, this Court stated:
“ ‘The rule laid down in the Maier case, supra, does not require that one be able absolutely to stop short of an object appearing in the radius of his lights, regardless of existing conditions, but only that he drive at night at such a speed as to be able ordinarily to so stop. Whether respondents were or were not negligent in driving at such a speed as not to be able to stop before the collision, was a question for the jury to determine under all the evidence.’
“See, also, Stanger v. Hunter, 49 Idaho 723, 291 P. 1060; Baldwin v. Mittry, 61 Idaho 427, 102 P.2d 643.”
Instruction 34 is a correct statement of the law as previously announced by this court, although this writer is willing to concede that the phrase used in the instruction, as a matter of law, is questionable. It would seem to me to be the better practice, following the rule of stare decisis, for this court to affirm the decision of the trial court, inasmuch as this was the law at the time this case was tried, but to disapprove the further use of this phrase in the context used in instruction 34.
Both of these instructions considered together with instruction No. 35, clearly stated the applicable law to the jury and the judgment of the trial court should have been affirmed.
In all other respects I concur with the majority opinion.