(dissenting).
At the time of the accident and injury complained of respondent Marion J. Hess, hereafter referred to as Hess, was engaged in improving a stretch of road, pursuant to a contract with the State of Idaho. The State had employed plaintiff William Byron Hoffman, a minor, to act as checker for. the Highway to see that Hess followed the specifications of his contract. At the time of the .accident and injury Hess, pursuant to his contract, had a truck unloading gravel. The truck’s headlights were on and signal lights flashing. Defendant Lee Barker then drove an automobile on the highway then being improved, near and against the truck, and collided with said Hoffman. The driver of the automobile was alleged to be under the influence of intoxicating liquor, speeding and keeping no lookout and according to the complaint was acting in wilful and wanton disregard of. the rights of others.
Liability on the part of Hess is claimed for the alleged reasons that he failed to give adequate warning that the road was under construction at the .time and place in question; that his truck was placed on the left hand side of the road in the direction it was headed; that there was no warning given that Hess was dumping gravel and that the truck’s directional signal lights were flashing when the truck was not actually turning or preparing to turn.
The question presented is who is responsible for the damage to employee Hoffman. Just what action Hess should have taken to prevent a drunken and careless driver 'from running into Hoffman is not made clear. Hess had no . reason to believe or foresee that the driver of the Barker car would act as she did.
*348No conduct or lack of conduct on the part of Hess was the proximate, of a contributing cause óf the injury to Hoffman.
In Craig v. Village of Meridian, 56 Idaho 220, 52 P.2d 145, where a passenger of a car was injured because the driver ran into a ditch which could or should have been observed, it was held that the hazard, if any, created by the Village was not the proximate cause of the damage complained of.
The rule applicable to the situation here is stated in 65 C.J.S. Negligence § 103, p. 645:
“ ‘Proximate cause’ is most often defined as any cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of and without which the result would not have occurred;”
And where a driver of an automobile left his car standing on the highway and a car headed in the same direction in passing ran into a ditch, overturned and injured a passenger, it was held that the proximate cause of the damage was not the negligence of the driver of the parked motor vehicle. Geisen v. Luce, 185 Minn. 479, 242 N.W. 8.
In the present situation an intervening cause that is the act of a third person (Barker) was responsible for the damage and injury complained of. Thus, in Pilvelis v. Plains Tp., 140 Pa.Super. 561, 14 A.2d 557, it was held that in order that a negligent actor be held liable for another’s bodily harm, it is necessary not only that the actor’s conduct be negligent toward the other in the particulars stated, but also that the negligence o>f the actor be the legal cause of the other’s harm. Further before one can be liable such negligence, if any, must be a substantial factor in bringing about the harm complained of.
In 'the present situation, while I can see no negligence alleged on the part of Hess, his negligence, if any, was not the 'cause of the injury and damage complained of.
Before Hess could be liable it would be necessary that his conduct be the legal cause of the damage and injury. Restatement of the Law of Torts, Vol. 2, American Law Institute, para. 430.
The sole and only proximate cause of the damage and injury here assertéd is the negligence of respondent Barker. There being no negligence on the- part of Hess which caused the harm, his conduct was not a contributing factor .to the injury. Hence I am of the opinion the judgment should be affirmed.