¶1(dissenting).
¶2I feel that the inspection made by the Department of Highways was reasonable and that there was no showing of negligence on its part. On the latter point there was sufficient evidence to sustain the Board of Claims’ finding of no negligence. Apparently the question of contributory negligence of Mary Maiden was neither considered nor determined.
¶3The opinion undertakes to distinguish this case from Commonwealth, Dept, of Highways v. Callebs, Ky., 381 S.W.2d 623. However, in that case a tree located nine feet six inches from the edge of the hard surface of U. S. Highway 21-E, a busy thoroughfare, fell across the highway, striking a car. It fell at a place located five blocks from the Knox County Hospital and 250 feet north of the intersection of Knox Street and U. S. Highway 25-E in Bar-bourville. I do not think that the distinction sought to be made between this area and the area described in the majority opinion as a commercial area in the city of Mid-dlesboro is valid.
¶4Further, the suggestion in the majority opinion that the inspection should be made in “off” hours is unreasonable. In a business area such as here conceivably the streets and parking places could be filled with cars until long after dark. The majority opinion says a “walk-around” inspection should have been made at a time when the streets were empty. This suggests an inspection after dark on foot, possibly with a flashlight. This does not seem reasonable to me, especially considering the time consumed in walking over all of the streets of a large business area.
¶5For these reasons I respectfully dissent.