dissenting.
This was a 1978 Chevrolet half-ton pickup truck with an open bed. It was owned by defendant Ledbetter who was an auto mechanic by trade. All had been drinking beer during this evening out. Ledbetter knew that plaintiff's decedent Miller drank two beers for his one. Ledbetter was driving, and Reiva and Kysar were seated next to him in the cab. Miller was in the bed of the truck with Harsh. Miller sat on the rail along the left side of the bed, leaning so far out and around that his head and shoulder could be seen through the driver's side window of the cab by Kysar as Miller carried on a conversation with Ledbetter. Ledbetter did not warn Miller about leaning out in this manner, believing that he had a good enough grip to hang on and could handle himself. Travelling 45 miles per hour, the truck reached a small rise in the road, where Miller fell out and sustained fatal injuries.
The relationship between the parties here is one of truck driver and live human cargo. A truck is a tool. The cab of a truck is for the driver and passengers. The bed of a truck is for transporting cargo. The rear suspension and tires are very firm. The jarring effect from passing over bumps in the road is transferred perfectly to the rigid floor and sides of the bed and to the cargo. The ability of the driver to communicate with persons in the bed is severely restricted. Persons occupying an open bed while moving down the street are in a hazardous position. The driver of a truck knows all this; a guest choosing to sit in the bed, particularly a child or intoxicated person, may know very little.
It is unlawful to carry a load which extends out beyond the fender line on the driver's side. I.C. 9-20-8-5. It is unlawful to transport a child under four years of age where there are no seat restraints I.C. 9-19-11-38. The operator of vehicle must exercise proper caution upon observing an *1374intoxicated person. I.C. 9-21-8-87. It is unlawful to drive faster than is reasonable and prudent under the conditions, having regard to the actual and potential hazards then existing. I.C. 9-21-5-1. These expressions of public policy lend support to the process of understanding this appeal.
It is the relationship existing between parties which may give rise to the duty of one to exercise care for the safety of another. Neal v. Home Builders, Inc. (1953), 232 Ind. 160, 111 N.E.2d 280. The open bed of a pickup truck is not designed for passengers and is a dangerous place for them, even where the truck is operated below the maximum speed limit and in accord with the special rules of the road. When the driver of a truck permits any untended child or intoxicated person to ride there, he should be legally responsible for placing such person in a position of peril. See Senese v. Peoples, 626 F.Supp. 465 (M.D.Pa.1985). When such driver permits a normal adult to ride there without making the peril known to such adult, he should likewise be legally responsible. Johnson v. Pedicord (1937), 105 Ind.App. 71, 10 N.E.2d 295. I agree with the Fourth District in this case that it was a jury question whether Ledbetter breached his duty to use reasonable care for the safety of Miller when, after learning Miller was sitting on the side of the truck, Ledbetter simply rolled on down the road, taking no action to diminish the danger to Miller.