¶1{dissenting). The term “negligence” signifies want of care, caution, attention, diligence, or skill in the performance of an act by one having no positive intent to injure. One is negligent if he fails to exercise his power of control over a situation when the circumstances are such as cast upon him a duty to control it. The rule is that if the *61negligence of the party injured contributed to produce the injury, or if he could in the exercise of ordinary care have avoided it, and failed to do so, the case is one of mutual fault and then the negligence of one is to be compared with that of the other.
¶2The facts before us show that the injured party drove into a standing truck, with full knowledge that it was there. Upon these facts he was actively negligent. The facts do not differ from those of the first illustration in Restatement, Torts, § 302, which is as follows:
“A, an engineer of a railway engine, is driving it with the throttle open. On rounding the corner he sees a quarter of a mile away a trespasser lying unconscious on the track. The engineer’s failure to stop his engine is regarded as active negligence, as fully as though the engine had been standing on the track and he had started it with knowledge of the trespasser’s position.”
¶3If we assume that the truck driver had no possible excuse for leaving his truck upon the highway, still it cannot be said that the plaintiff was not in full control of the force that might cause injury. The truck was there. The necessity of passing was plain. The plaintiff was bound to consider the possibility of oncoming cars. Since he had notice of the truck’s position, his failure to accommodate his movements to the evident condition was negligence, and this negligence was at least equal to that of the truck driver.
¶4I am of the opinion that nonsuit was properly granted.