I dissent from Division II of the majority opinion wherein it is said that the appellant's failure to sound his automobile horn did not present a question of negligence for the jury.
It occurs to me that a jury question on that proposition is present in this record. When a truck or automobile is parked along the side of the highway, it is notice to the driver of an *Page 738 approaching car that someone is on, under, or near the standing truck or car. Maybe the truck or car was stopped for the purpose of adjusting the machinery, and a man may be under the car, and might crawl out into a place of danger if not warned. Or it is possible that the driver may step from behind the parked vehicle into a place of danger if not warned. Of course, the mechanic, driver, or other person in or near the parked truck or car must use due care. That, however, is a question that pertains to contributory negligence. The child in this case was not driving the parked car. Neither was he a mechanic. Yet the driver of the parked car or a mechanic might have jumped from the car to the highway the same as did the child. Had a mechanic or driver so done, he would have been killed or injured under the circumstances.
Perhaps it is true that the appellant did not know the child in the case at bar was sitting back of the cream can. Likewise, it is perhaps true that the appellant did not know that such unseen child would jump from a place of safety into one of danger. Thus it appears how necessary under the circumstances it was for the appellant to give warning of the fast approach of his automobile. Such warning is for the very purpose of preventing an unseen person from doing something that the driver of the on-coming car does not know will, but should anticipate might, be done. Common experience teaches us that men, women, and children may be in or near a standing truck or vehicle on the highway. Many times, unless warned, these people will step from a place of safety into one of danger on the highway. These actions of persons in or near a parked truck or car should be anticipated by the driver of an on-coming car. Said driver of the on-coming car should operate his vehicle with those facts in mind and give warnings of his approach accordingly.
For the purposes of this discussion, it matters not whether the child in the case at bar jumped or crawled or walked. The necessity for warning on the part of the driver of the on-coming car is the same. It is possible that the child who jumped might, if he were old enough, be guilty of contributory negligence, but that is another question. Here the proposition is whether appellant was guilty of negligence. I think a driver who is going 45 or 50 miles an hour passing a standing car certainly has *Page 739 a duty to warn those who may be on, under, or around the standing car that the fast-moving vehicle is approaching. On this question I think the situation would be different were the car standing on a city or town street. In cities, automobiles are expected to be parked along the streets and the occupants in a place of safety either on the sidewalk or in the parked car, but in the country this is not true, and generally a car is not there parked unless to repair a breakdown or for other temporary purposes. When thus parked in the country for such temporary purpose, the driver or passengers are generally along or near the parked car. Moreover, it is the general rule that the speed of passing automobiles in the country is much greater than the speed of such automobiles in the city.
At least, a jury question is presented at this point. I would affirm.
Mr. Justice MORLING joins in this dissent.