I dissent. The majority opinion, I think, fails to give the fair purport of Fred Schieck's testimony. It speaks of that testimony thus: *Page 505
"A. I kept my eye on the truck — I looked longer at the truck here (indicating on map) than I did up there (indicating on map) to see if I had ample time to cross. . . . I thought the truck was going at the speed that any truck should be going at."
The statement of facts shows his testimony on this subject was as follows:
"A. I kept my eye on the truck — I looked longer at the truck here (indicating on map) than I did up there (indicating on map) to see if I had ample time to cross. Q. And you were going to cross ahead of the truck? A. I was. Q. Why did you slow down then from `7' to `12' (points referred to on the map) if you were going to cross ahead of the truck? A. When I was at `7', I was watching the truck. Q. Did you notice the speed? A. I didn't notice the speed. Q. You saw it was coming, however? A. Sure, it was coming. Q. Some of the witnesses testified that it was going fifty miles an hour. You heard them testify, didn't you? A. Yes, sir. Q. But you cannot tell what speed it was going at? A. I cannot tell what speed it was going at. Q. Why can't you tell what speed it was going at? A. Because there was an angle there that kept me from judging its speed. Q. Well, it was going across your line of vision, wasn't it? A. Not exactly, no. Q. Did you have any idea how fast it was going? A. No, sir; I thought the speed — Q. (Interrupting) You haven't any idea how fast it was going? MR. STONEMAN: Let him answer your previous question. You interrupted him. Finish your answer. THE WITNESS: I thought the truck was going at the speed that any truck should be going at. Q. You were looking at it, weren't you? A. I glanced at it; I didn't hold my eyes on it all the time. Q. As a matter of fact, you didn't pay any attention to the speed of the truck, did you? A. I did look at the truck. Q. Well, you didn't look long enough to realize how fast it was going? A. I cannot drive a car and look at a truck at the same time."
The foregoing testimony convinces me that the boy, being the disfavored driver, after having seen the *Page 506 truck when he was seventy-five feet from the intersection, proceeded on his course without due regard for the vehicle approaching from the right. When the collision occurred, the Chevrolet sedan had reached a point about three-fourths of the distance across First avenue northeast. That street is twenty-eight feet wide. In my opinion, the evidence conclusively shows that the collision would not have occurred except for the contributory negligence of Fred Schieck in failing to comply with Rem. 1927 Sup., § 6362-41, subd. 14, which provides:
"Drivers, when approaching public highway intersections,shall look out for and give right of way to vehicles on their right, simultaneously approaching a given point within the intersection, and whether such vehicles first enter and reach the intersection or not: Provided, this paragraph shall not apply to drivers on arterial highways." (Italics ours.)
The boy was his father's agent for the purpose of driving the car, and the negligence of the boy is imputable to the father, for whose death damages are sought.