dissent">Hays, J.

(dissenting)- — I am unable to agree with Division I of the majority opinion and respectfully dissent.

The question involved is whether the appellee was guilty of contributory negligence as a matter of law, and in considering the testimony it must be examined in the light most favorable to him and it is presumed that the defendant-appellant was negligent.

In addition to the facts set forth in the majority opinion, the following facts, as shown by the record, are pertinent: At the time that plaintiff passed through Milford, a car in which four women from Estherville were riding stopped for the night due to the heavy fog. Immediately following the collision, the police from Milford in going to the scene thereof were forced to drive at a rate of 25 miles per hour. Another party, starting from Milford for the scene of the collision, turned around and came back because of the fog. Two witnesses for the appellee, who were driving on the highway a short distance behind the appellee’s car, testified that 20 to 25 miles per hour was as fast as it was safe to drive on account of the fog.

*883Appellee, as a witness, stated that at the north edge of the town of Milford ivas a water hole, which required slow driving; that when he got past that he proceeded at 40 to 50 miles per hour; as he passed a farmhouse about a quarter of a mile north of town the fog began to be heavy; that when he reached a point about 125 feet from where he crashed he’saw a small light sort of dancing on the pavement ahead of him; that he eased on his brakes and kept his eye on the light until he passed it and then saw appellant’s truck on the pavement directly ahead. He testified further as follows:

“Q'. Can you tell the jury as you approached that truck and it became a vision before you as you describe, outlined and all, what was the condition of the fog where the truck-trailer or whatever you call it stood? A. Awfully heavy. Q. How was the fog there as compared with the fog 30, 25 or 30 feet south of the truck southward? A. It was heavier there. Q. Where? A. By the truck. Q. Than to your southward? A. Yes. In fact you could hardly see anything at all until you were right up there.”

On cross-examination, he testified as follows: That he was going 40 to 45 miles prior to the collision as he had just started to pick up speed where the collision occurred; that he could not tell when he was going to enter a fog bank until he was right up to it; that he was 150 to 200 feet from the fog when he saw it. He further stated:

“Q. Is that when you first applied your brakes ? A. No. * * # I didn’t change speed at all that I can recall. Q. How -far did you travel from the time you first saw the fog bank until you applied your brakes? A. We had gone into the bank already before I ever put the brakes on. When I seen that light I put the brakes on. Q. The fog was such that you couldn’t see this light, as you approached this fog bank? A. No, I couldn’t see it. * * **Q. How far did you travel before you applied your brakes as you saw this light waving there? A. I was getting close to it then. Q. How close would you say ? A. Oh, I believe that I was probably within 50 feet of the man, or maybe 35. I know I was getting close before I could tell what it was. Q. So when you got within 35 feet of the light then you applied your brakes? A. Yes, I had stepped on the *884brakes, but I really hadn’t stepped down on them. * * * Q. At that time what do you say your rate of speed was ? A. At the time I went by the light? Q. Yes. A. I would say 40 miles an hour, anyway, when I passed the light.”

There is no question, but what, as stated in the majority opinion, appellee was entitled to assume that others using the highways would obey the law, in this instance that appellant would not park an unlighted truck upon the highway at night. It is also the rule that ordinarily the issue of contributory negligence is for the jury, except where the facts are clear and undisputed and the cause and effect so apparent to every candid mind that but one conclusion may be fairly drawn therefrom, in which case it is a question for the court. Roushar v. Dixon, 231 Ioiva 993, 2 N.W. 2d 660.

The majority opinion cites many of our decisions involving fog, in which we have said that it is not required of the plaintiff that he should stop until the fog lifts, but that he may proceed in a careful and prudent manner, and that whether he was so proceeding at the time is for the jury. Each case must of necessity stand on its own facts and a review thereof shows entirely different factual situations and are of no value as precedents.

I concede that appellee is entitled to the benefits of the statute which allows a driver to assume others using the highways will obey the law, and that where he is in the exercise of due care and is suddenly confronted with an object illegally upon the highway a legal excuse for not observing the same is created. Central States Elec. Co. v. McVay, 232 Iowa 469, 5 N.W.2d 817. However, under this (McVay) case, and it is cited and relied upon by the majority as the basis for its opinion, the existence of a legal excuse depends upon whether or not the plaintiff was exercising due care at the time he was confronted with the illegal object, so we are b"ack to where we started. Was appellee exercising due care when he was confronted with the appellant’s truck ?

Two things must be kept in mind in determining the issue here involved: (1) That the burden is upon the plaintiff to plead and prove that he was frée from contributory negligence. (2) The meaning of contributory negligence- as adopted by this court. It is such negligence on the part of the plaintiff which “directly con*885tributes to the damage in any degree or in any'way.” Rogers v. Lagomarcino-Grupe Co., 215 Iowa 1270, 248 N.W. 1; Yance v. Hoskins, 225 Iowa 1108, 1117, 281 N.W. 489, 118 A.L.R. 1186. It need not contribute proximately to the injury. Jakeway v. Allen, 227 Iowa 1182, 290 N.W. 507.

Under the undisputed testimony iu this case, examined in the light of our definition of contributory negligence and that the burden is upon the plaintiff to prove his freedom therefrom, it seems to me that appellee is guilty of contributory negligence as a matter of law. The record shows that he was driving blindly into a heavy fog bank at a speed of at least 40 miles per hour without regard to what might be ahead • that such conduct is so clearly not due care under the circumstances, that no candid minds can differ thereon, and that such negligence certainly contributed directly to the injury in some degree or in some way.

In my judgment it was the duty of the court to direct a verdict for the appellant. I would reverse the judgment of the trial court and remand the case for a judgment dismissing the plaintiff’s petition.

Smith, Mantz and Thompson, JJ., join in this dissent.

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