¶1 (dissenting) — In my opinion, the evidence clearly shows that Mr. Thornton was guilty of negligence which materially contributed to his injuries, and that for this reason he is not entitled to recover judgment against any of the appellants.
¶2 After assisting in extricating the boy from under one of the front wheels of his car, Mr. Thornton was standing on the side of the road, off the pavement, in a perfectly safe place. He testified that, prior to stepping back on to the pavement to examine his car, he was aware of approaching traffic, stating, “I looked up to see if any cars was coming and I noticed these lights coming.” He further testified that he did not estimate the speed of the approaching cars, nor how far away they were, but that they appeared to be coming rather rapidly.
¶3 In the face of this situation, Mr. Thornton walked out on to the pavement and placed himself in a position of peril. Under all the circumstances, of which *13 Mr. Thornton was fully advised, the dangerous conditions having’ been clearly demonstrated to him by what had already happened, in my opinion Mr. Thornton, in stepping out on to the pavement in the face of oncoming traffic, should be held, as matter of law, to have been guilty of contributory negligence.
¶4 I accordingly dissent from the conclusion reached by the majority.
¶5 Tolman, J., dissents.