¶1 concurring:
¶2 If plaintiff’s instruction No. 7 had not contained the clause “and that the defendant had given Carnahan no signal or warning of his approach”, I would consider the instruction unquestionably erroneous for the reason stated in the opinion. But the presence of that clause, together with the other recitals of the instruction, intro *284 duces, it seems to me, a situation for pronouncement of a legal conclusion rather than for a finding of fact. If the circumstances were as recited in the instruction, I am impressed that it would follow as a matter of law that the defendant’s conduct was the proximate cause of the plaintiff’s injuries.
¶3 But if the instruction was erroneous, I concur in the conclusion stated in the opinion by Judge Litz that the error was non-prejudicial.