(dissenting).
I dissent. This is a personal injury action which was tried to the court without a jury and an appeal has been taken from the judgment to this court under Section 28-27-32, N.D.C.C., for trial anew of the questions of fact in the entire case.
The trial court, which had the benefit of seeing and hearing the witnesses as they testified at the trial, found that both parties had been negligent and that the negligence of each was a proximate cause of the collision which resulted in the plaintiff’s injuries. It therefore dismissed the plaintiff’s claim. The findings of fact of the trial court are entitled to appreciable weight on an appeal, triable de novo, in this court. Campbell v. Beaton (N.D.1962), 117 N.W. 2d 849.
The majority have found that the sole proximate cause of the collision which injured the plaintiff consisted of three acts of negligence on the part of the defendant. They are as follows: (1) improperly moving on the highway at night a haystack mover of excessive width; (2) failure to place lamps, or reflectors, on the extreme left projecting edge of the haystack mover; and (3) causing the haystack mover to project over the center line of the traveled portion of the roadway. The majority have also found that the plaintiff drove his automobile partially over the center line of the traveled portion of the roadway but conclude that, if this was negligence, it was not significant enough to constitute a proximate cause of the collision. They premise this conclusion on their finding that the parties were traveling on a graveled roadway without permanent marking as to the location of a center line and, therefore, drivers follow the worn tracks made by the continuous travel of vehicles and “under this practice, the center of the roadway, as discussed above, might lie within one of those tracks.” For these reasons, they conclude that the defendant has failed to sustain the burden of proof that the plaintiff’s negligence contributed to his injuries.
I do not agree. The record in this case does not establish the location of the worn tracks made by continuous travel except as they may be observed from photographs in evidence. The photographs of the accident scene portray an evenly balanced, well-maintained roadway showing two sets of tracks. These tracks appear to be equidistant from each edge of the roadway. No evidence was introduced of measurement of these tracks. The action was tried on the theory that the geographical center line was also the center line of the main *436traveled portion of the roadway. To state, as the majority have, that the center of the roadway “might lie within one of those tracks,” is obviously a speculation. I find no evidence upon which to base such an inference.
The left front corner of the haystack mover was about 1½ feet east of the geographical center line of the roadway after it came to rest following the accident. This fact is based upon measurements made by the state highway patrolman. This is also the approximate position which the majority found the entire left side of the haystack mover to be in when the collision occurred. The majority found that the haystack mover was being driven parallel to the road, 1.65 feet over the center line, at the time of the collision. The majority have failed to take into account that the force of the impact caused the haystack mover to pivot toward the left on its centrally located wheels. Following the accident, the haystack mover was standing at an angle, facing southeasterly, and the defendant’s tractor, to which it was attached by a drawbar, was facing southwesterly. Thus the movement of the front end of the haystack mover toward the left pulled the rear end of the tractor also toward the left. Because the haystack mover was attached by a drawbar to the rear end of the tractor, the rear of the tractor and the front of the haystack mover moved together in the same direction and the same distance. In other words, the tandem hookup of the tractor and haystack mover caused these two implements to jackknife. The haystack mover had two sets of dual wheels which were located about midway and were set in about 2½ feet from its sides. It pivoted on its centrally located wheels. Thus the rear end of the haystack mover moved toward the right and the front end moved toward the left. The highway patrolman measured the distance from the left front of the haystack mover to the east edge of the roadway. This distance was 10½ feet and the distance from its left rear corner to the east edge of the roadway was 18 feet. Thus the left front corner of the haystack mover, when it came to rest after the accident, was located about 1½ feet over the geographical center line and the rear left corner of the haystack mover was located 7 feet west of the geographical center line. The evidence establishes that the haystack mover and the tractor were traveling parallel to the center line of the roadway before the accident. Because of the pivoting movement of the haystack mover when struck on its left front corner by the plaintiff’s automobile, the ends of the haystack mover moved in opposite directions. Therefore, it may be more logical to reconstruct the position of the haystack mover on the roadway before the accident by adding the distances of the left front and rear of the haystack mover from the edge of the highway and dividing this sum by 2. Thus, 18 feet plus 10½ feet equals 28½ feet, and divided by 2, equals 14;4 feet. This point is 2¼ feet west of the geographical center line of the roadway. This figure is not, perhaps, entirely accurate for the reason that the force of the plaintiff’s automobile may also have driven the defendant’s haystack mover and tractor backward a short distance.
The reconstruction of the position of the defendant’s equipment upon the roadway before the accident, as set forth above, reasonably harmonizes with other measurements made by the state highway patrolman. These measurements relate to the location of the front end of the tractor after the accident. It also harmonizes with various photographs introduced in evidence. As I stated earlier, the force of the impact caused the defendant’s tractor and haystack mover to jackknife. This is not disputed and is graphically portrayed by the photographs in evidence. The tractor did not pivot as did the haystack mover because the tractor had two wheels located at the rear and two wheels located at its front, whereas the haystack mover had one axle with wheels centrally located. The force of the pivoting movement of the haystack mover caused the rear wheels of the tractor to slide, or skid, toward the left and the front wheels to remain relatively stable on the road. Photographs in evidence of the accident scene clearly show that the right front wheel of the tractor was at the extreme *437west edge of the 24-foot roadway after the collision. This fact is also confirmed by measurements taken by the highway patrolman. He measured the distance from the east edge of the roadway to the outside of the left front wheel of the tractor. He testified that this distance was 18½ feet, which is a point 6)4 feet west of the geographical center line. The distance between the outer edges of the front wheels of the tractor was 5 feet, 5 inches. Therefore, adding 6 feet, 6 inches, to 5 feet, S inches, equals 11 feet, 11 inches, and establishes that the outside of the right front wheel of the tractor was within one inch of the extreme west edge of the roadway. These facts are important in determining the location of the haystack mover with respect to the roadway prior to the accident. The defendant’s equipment was being moved parallel with the center line before the accident. The haystack mover was 17.5 feet in width. It had a drawbar in the front center attached to the tractor at its rear center. Therefore, establishing a point by taking one-half of the width of the front 'of the tractor, equaling 2 feet, 8½ inches, and extending a line from that point to the rear of the tractor where the haystack mover was attached, and adding to that figure 8 feet, 9 inches (one-half of 17.5 feet, the width of the haystack mover), equals 11 feet, 5½ inches. This would be the approximate distance of the east edge of the haystack mover from the west edge of the roadway.
In addition to the evidence alluded to above, another set of measurements indicate that the haystack mover was on its one-half of the roadway at the time of the accident. The dual wheels under the center of the haystack mover were located 2½ feet in from the outer edges of the haystack mover. The dual wheels were 1 ½ feet in width. An exhibit prepared by a civil engineer, who investigated the accident scene at a later date, was introduced in evidence. It shows that the inside edge of the right dual wheels of the haystack mover were on the shoulder 2½ feet west of the west edge of the roadway. This evidence places the east edge of the haystack mover 11 feet from the west edge of the 24-foot roadway before the accident.
In addition to the foregoing evidence, there were two witnesses who were at the accident scene while the vehicles were still in position. They also testified to the position of the right dual wheels of the haystack mover after the accident in relation to the maintained portion of the roadway. Each had looked under the haystack mover and observed that the right dual wheels of the haystack mover were standing on the shoulder of the roadway. One witness estimated that the inside of the duals were 20 inches from the maintained portion of the roadway, and the other estimated the distance as being from 20 to 24 inches. The outside of the dual wheels were 2½ feet from the outer edges of the stack mover and the duals were 1 ½ feet in width. Therefore, it appears logical to conclude that the sum of the measurements given above subtracted from the width of the stack mover (17y2 feet), equals the distance the stack mover extended over the maintained portion of the roadway, measured from the west edge of the roadway. Thus, 20 inches plus 2½ feet, plus 1 ½ feet, equals 4 feet, 20 inches. Seventeen and one-half feet minus 4 feet, 20 inches, equals 11 feet, 10 inches, the distance the stack mover projected over the west portion of the roadway. This is less than one-half of the roadway, which is measured as being 24 feet in width.
The majority have based their calculations on a rib mark made by the right rear wheel of the tractor as a starting point and conclude this mark is evidence of the position of the tractor prior to the accident. They have failed to give any weight to the evidence I have alluded to. I do not agree that the evidence of the rib mark establishes this mark as the position of the tractor prior to the accident. If one accepts this premise, I wonder how does one explain that the right front wheel of the tractor was positioned immediately adjacent to the west edge of the roadway even after the accident. It is my opinion that the rear wheels of the tractor were pulled to the left by the stack mover and that the rib mark was *438made by the sideward movement of the tractor as it was pulled to the left by the pivoting movement of the haystack mover. I am of the opinion that the position of the front wheels is a much weightier fact upon which to base an inference as to the position of the tractor before the accident than the rib mark of the rear wheel accepted by the majority.
It appears to me that the above evidence is determinative of this case. It is my opinion that the defendant was driving his tractor and haystack mover on his one-half of the roadway. I agree that the defendant was negligent in moving, upon the highway, an illegal load of excessive width in the nighttime. Although it would not absolve him of the violation of moving an illegal load, it was also negligence not to have clearance lights upon his wide load. This negligence, however, was not a proximate cause of the plaintiff’s injuries. The plaintiff collided with the left front corner of the defendant’s haystack mover. I agree with the majority that the plaintiff was driving over the center line of the roadway but find that he was farther over the center line than indicated by the majority. Had the plaintiff driven his automobile upon the right half of the roadway, no collision would have occurred and the plaintiff would not have been injured. It is my conclusion that the plaintiff has failed to sustain the burden of proof that the defendant’s negligence was a proximate cause of the accident. If, however, the defendant’s negligence (the wide, unlighted load) was a proximate cause of the plaintiff’s injuries, it is then my opinion that the plaintiff’s injuries resulted from the concurrent negligence of both the parties and that the negligence of each was the proximate cause of the plaintiff’s injuries.
For these reasons I would affirm the judgment of dismissal.
The majority reverse the judgment of dismissal and remand the case to the district court for a determination of damages. The case was fully tried to the district court and evidence on the question of damages was adduced. This appeal was taken under Section 28-27-32, N.D.C.C., which statute is normally referred to as the “trial de novo” statute. This statute, in part, provides :
“The supreme court shall try anew the questions of fact specified in the statement or in the entire case, if the appellant demands a retrial of the entire case, and shall finally dispose of the same whenever justice can be done without a new trial, and shall either affirm or modify the judgment or direct a new judgment to be entered in the district court.”
The appellant in this case has demanded a trial of the entire case in this court. Under such circumstances, it appears to me that, unless we grant a new trial, to do justice this court shall “finally dispose of the same” and “shall either affirm or modify the judgment or direct a new judgment to be entered in the district court.” This includes finding the damages. I find no provision in the statute which authorizes this court to direct the lower court to make a new finding on a matter which was fully submitted to it but on which it did not find because it dismissed the action. The “de novo” statute does not allow this court to grant a new trial for this reason. It states, in part:
“In actions tried under the provisions of this section, failure of the [trial] court to make findings upon all the issues in the case shall not constitute a ground for granting a new trial or reversing the judgment.” Section 28-27-32, N.D.C.C.
I find no provision in the statute which allows this court to decide one issue on an appeal taken de novo and remand another issue to the trial court for determination without a new trial being ordered. I believe that the onus is on this court to determine the amount of damages from the evidence of record in this case. I am cognizant of Wanna v. Miller (N.D.1965), 136 N.W.2d 563, in which we made a similar disposition, but I feel that we erred in so doing and the error should not be perpetuated.
STRUTZ, J., concurs.