¶1 dissenting. On the record in this case, the application of the assured-clear-distance rule to a vehicle parked in a storage lane or road berm and within the public right of way is not presented. There is no evidence as to the width of the right of way on Beecham Road. A court might take judicial notice that, in general, public right of way exceeds the hard surface pavement of a county road. However, it cannot assume, in the absence of evidence, the right of way of a particular road. For this reason only, and without indicating any further opinion, I agree that assured clear distance should not be considered in this case.
¶2 As to defendant’s breach of a duty of ordinary care, it is well to state again the pertinent facts. Beecham Road is straight for a considerable distance before the point of impact. There are no significant obstructions to sight and only “minor dips” in the pavement. The night was dark and cloudy. There is nothing to indicate that the visibility was poor. The Murray Chevrolet had four headlights from the Pontiac shining directly on it from the front. There is nothing in the evidence as to reflected light, although it is most difficult to believe that this *104 would be completely absent and invisible to an approaching vehicle. In any event, the defendant’s testimony is that he was “suddenly blinded” by two headlights at about 100 to 150 feet from the Murray Chevrolet. Obviously then, two of the Pontiac’s headlights shone past the Chevrolet and reached in a direct beam 100 to 150 feet down the road toward the approaching defendant’s vehicle. As a matter of physical necessity, these headlights would light up the left or road side of the Chevrolet since the Pontiac was only one foot from it and virtually in front.
¶3 To accept the defendant’s testimony requires a finding that despite the beams of these two lights and their reflections on the road and atmosphere, together with the reflections from the other lights on the ground, air and Chevrolet, including the light provided by his own headlights, defendant saw absolutely nothing as he approached the Chevrolet prior- to the moment that he was “blinded,” and further that a reasonably prudent driver could not have seen anything. To find that defendant was not negligent requires not only the acceptance of that position but the further finding that upon being “blinded” the defendant in the exercise of ordinary care could not have avoided drifting to his right off the pavement and colliding with the the parked Chevrolet some 100 to 150 feet further on. Conceding that the evidence lacks precision, I still find this factual analysis incredible.
¶4 An argument as to contributory negligence might be made as to Mrs. Murray. However, the trial court in its findings of fact and conclusions of law did not pass on contributory negligence. I cannot say on this record that Mrs. Murray was negligent as a matter of law. As to Mr. Murray’s action in case No. 7153, it is for property damage to the Pontiac. Mr. Murray was not driving and was not present at the scene. He is simply the owner of the vehicle.
¶5 Accordingly, I believe the judgment should be reversed.