I cannot agree with the holding of the majority of the Court that plaintiff was guilty of contributory negligence as a matter of law. *Page 105
Of course, it is not disputed that the truck was being operated on a straight stretch of new concrete highway twenty feet in width. Resolving a conflict in the evidence, as to other vehicles travelling in the opposite direction, in favor of plaintiff by reason of the verdict in his behalf, the record shows that the entire width of the paved surface was available to the driver of the truck, a fact which was apparent to plaintiff as he crossed the berm "quartering," and approached the edge of the highway. The body of the truck extended beyond the outer dual rear wheel four inches. If the inner rear wheel remained on the hard surface the truck would leave no wheel mark on the berm, although its body overhung four inches plus the distance between the outside of the outer wheel and the center of the inner wheel, that space being dependent upon the width of tires upon a truck carrying between three and a half and four tons of steel.
What degree of care was plaintiff required to exercise in order to avoid being struck in the dark while on the berm, by that part of the truck body which extended beyond the hard surface, and which extension was not marked by any light? Wherein was the plaintiff guilty of contributory negligence as a matter of law, in stopping before he reached the paved surface, eighteen inches, one foot, or, as the majority opinion states, "well within" one foot, thereof? I find difficulty in saying as a matter of law that the plaintiff, without reasonable care for his safety, placed himself in a perilous position thereby. Just at what point on the ten-foot width of berm did the plaintiff become negligent as a matter of law? When he came up over the bank and entered upon the berm, I take the liberty of presuming that the majority would say that he had not established any conduct bordering upon negligence. There was no vehicle travelling on the berm, as a matter of fact, it was soft and muddy and offered no inducement to vehicular travel when compared with the new, straight, twenty-foot highway. I do not believe that this, or any other court can with propriety fix the point where plaintiff as a matter of law, changed from a prudent to a negligent wayfarer. With deference *Page 106 to the views of the majority, I am firm in the belief that it was the province of the jury to determine whether plaintiff acted as an ordinarily prudent man would have acted under the same circumstances.
Plaintiff had the right to assume that the driver of the approaching vehicle would exercise reasonable care. "In this jurisdiction a person using a public road has a right to assume that those likewise using the road will use due care."Fielder v. Service Cab Co., 122 W. Va. 522, 11 S.E.2d 115. To the same effect see Sewell v. Lawson, 115 W. Va. 527,177 S.E. 293; Ritter v. Hicks, 102 W. Va. 541, 135 S.E. 601, 50 A.L.R. 1505; Deputy v. Kimmell, 73 W. Va. 595,80 S.E. 919, 51 L.R.A. (N.S.) 989, Ann. Cas. 1916 E, 656. "Whether the care used by one charged with contributory negligence was that which an ordinarily prudent person would use in the same place and under the same circumstances is generally for the jury." Sewell v. Lawson, supra.
The cases of Milby v. Diggs, 118 W. Va. 56, 189 S.E. 107, andSlater v. Shirkey, 122 W. Va. 271, 8 S.E.2d 897, cited in the majority opinion, are, in my mind, distinguishable upon the facts from the case at bar, in that in each, the pedestrian walked into the travelled portion of the street or highway with utter lack of caution. In the case of Green v. Ruffin, 141 Va. 628,125 S.E. 742, 127 S.E. 486, referred to by the majority opinion as "controlling," the pedestrian had continued walking across the street after glancing up and seeing an approaching automobile; the opinion in that case, however, seems to support my views herein, by holding that a question of fact for the jury was presented as to whether the pedestrian used the care of an ordinarily prudent person under the same circumstances. In the case of Yoder v. Charleston Transit Co., 119 W. Va. 61,192 S.E. 349, also relied upon by the majority opinion, plaintiff walked into the street after having looked in both directions without appreciating her danger, and the court held that she was presumed to have seen what was in plain view and should have been seen. Here, the plaintiff saw the vehicle approaching and stopped to let it pass. I am of the opinion that the *Page 107 jury was entitled, under the cases cited in this note of dissent, to determine whether the plaintiff acted with reasonable prudence.
For the reasons assigned herein, I respectfully dissent from the opinion of the majority of the court.
I am authorized to state that Judge Kenna joins me in this dissent.