¶1dissenting.
¶2The majority opinion makes the defendant driver an insurer. There is no evidence upon which to predicate the finding that the driver failed to keep proper lookout, and this is the gravamen of plaintiff’s case.
¶3The evidence affirmatively shows that plaintiff was standing on the side of the street, hidden from view. Speculation and surmise must be employed to an extreme degree in order to find as a fact that the driver saw or by the exercise of reasonable care should have seen the plaintiff. Moreover, had the truck driver seen this eight year old boy standing at the bus stop, this would not have put him on notice that he would run across the street, without looking, and into the side of the truck.
¶4The truck did not run into the plaintiff; the plaintiff ran into the truck. This is conceded. The driver of the oil truck, the only witness other than the plaintiff who saw the accident, testified that plaintiff was watching the approach of his (oil) truck at the time he collided with the side of defendants’ truck. Plaintiff corroborated this when he testified that he did not see defendants’ truck at the time he walked or ran into it; that he was looking at the approaching oil truck.
¶5The fact that defendants’ truck was in motion in no way con*860tributed to the. acident except as it relates to the severity of the injuries. The accident would have occurred had the truck been standing still.
¶6As I view the case, there is not a scintilla of evidence to prove negligence on the part of the defendant driver, the sole proximate cause of the accident being the act or conduct of the infant plaintiff.
¶7I am of the opinion that the judgment should be reversed and final judgment entered for the defendants.
¶8Eggleston and Spratley, JJ., join in this dissent.