¶1dissenting.
¶2The problem is the recurring one which plagues every trial and appellate court. Is the defendant’s negligence or the plaintiff’s contributory negligence a question of fact for the jury or of law for the court? I am of the opinion that the jury could find the facts most favorably viewed for the defendant as follows: The defendant saw the dust storm from about two or three miles away; he was at that time traveling about 50 to 55 miles per hour, which was his usual -speed in open country. As he came closer he could not see through the dust to the other side of the storm. He observed that the -storm did not cover a very long stretch of the highway, as by looking through the top of the dusty area he could see -a rise in the highway beyond the dust. He saw no vehicle go into the dust storm. He met a vehicle which was traveling as fast or faster than defendant coming out of the dust storm.
¶3About a quarter of a mile before the defendant entered the du-st -area he took his foot off the accelerator. As he entered the dust -storm he was traveling 40 to 45 miles per hour; when he entered the dusty area he placed his foot lightly on the brake pedal. *582As soon as defendant entered into the dnst storm his visibility was limited to about 150 feet. “Well, all of sudden the dust blew up in a big swirl. I couldn’t see anything, and I jammed on the brakes and struck the Dormaier car.” At that time he testified he was traveling about 30 to 35 miles per hour. He never saw the Dormaier car until he struck it.
¶4It cannot be determined from the evidence how long or how far defendant had proceeded through the dust before he struck the plaintiff. Plaintiff testified he was “pretty well through the dust storm” where they stopped and later were hit.
¶5On the basis of these facts I conclude that defendant’s negligence is a question for the jury. The facts in our past decisions and those of other jurisdictions are sufficiently different so that they are neither compelling nor persuasive, except that we are bound by stare decisis to the rule that it is not negligence as a matter of law to drive an automobile at such a rate of speed that it cannot be stopped within the range of the driver’s vision. Murphy v. Hawthorne, 117 Or 319, 244 P 79, 44 ALR 139, (1926). Other than for this precedent we are guided only by our personal views of the respective functions of the judge and the jury.