(dissenting).
I dissent, unable to conclude that this is a jury case. The main opinion concedes that there is a different standard of care in. explosive cases, illustrating the difference by mentioning crowded cities and remote areas. Flowell, in Millard County, is about as remote as you can get. By the test mentioned, I am of the opinion that the defendants had little or no duty of care to one who kibitzed at the scene of the blasting, then rode off on his mount after the fuse was lit. One certainly wouldn’t expect the defendants to measure the distance plaintiff retreated before he reined in his horse, divine the linear footage he had traveled, make a hurried guess that he had not retreated far enough, assume that he would not dismount and then take the dangerous gamble of rushing in to douse the fuse, in a perilous effort to purge themselves of a charge of negligence.
The plaintiff knew what was going to happen, but nonetheless stopped traveling and sat on his horse without any effort to protect himself from rocks that might fall on his head in the immediate area. It is true defendants retreated about the same distance but they took the precaution of sheltering themselves inside the truck. They did not in any sense assume the same risk that plaintiff did, and it seems to me that the *7main opinion’s implication that they were exposed to the same risk is a complete non sequitur. Also, it seems to me that with reference to the bear example, the plaintiff did have a bear by the tail, and voluntarily assumed the consequences.1
The law of strict liability, I take it, does not allow for pure speculation by a jury as to reasonableness of one who does not come in out of the rain, — of rocks, in this instance, —when he should know of the impending inclemency.
Any speculation in this respect, under the facts of this case, indicate to me that violence to the facts of this case would be done where the rain fell on a curious sidewalk superintendent, who voluntarily took a chance on what happened, and it did.
I would sustain the trial court on his assumption of risk conclusion, and I think a good argument could be pursued to sustain the contributory negligence conclusion also reached.
CALLISTER, J., concurs in the view expressed in the dissenting opinion of HEN-RIOD, C. J.. For the bear analogy, the main opinion cites Restatement Second, Torts, Draft No. 10, Sec. 515, Comment (e). Let’s take the same work and cite Sec. 523(e) where it is said that “Likewise the risk is commonly assumed when the plaintiff, knowing that the activity is being carried on, and aware of the risk which it involves, voluntarily proceeds to encounter the risk by coming within range of it. Thus, one who voluntarily enters land on which he knows that blasting is .going on, and so brings himself within range of the abnormal risk which he knows to exist, must be taken to assume the risk of harm resulting from unpreventable miscarriage of the activity, although he does not assume the risk of any negligence in the operation unless he knows of it.” (Note: This is re*8cited, not as any authoritative expression in support of the dissent, but to illustrate that the reference to the bear, citing this same work, is inapropos here since refuted by tlie very work cited in cases of blasting, not bear-biting.)