dissent">Ott, J.

(dissenting) — The majority hold that giving instruction No. 11 was error. The instruction reads as follows:

“ ‘You are instructed, as a matter of law, that one driving outside cities and towns can assume that the traveled portion of the road ahead of him is unobstructed and safe for travel, unless he receives such warning as would cause an ordinarily careful and prudent person to be placed on notice that such road may be obstructed.’ ”

In my opinion, this is a proper statement of the law. The instruction states that a motorist may assume that a roadway is unobstructed unless he receives such warning as would put an ordinarily careful and prudent person on notice that it may be obstructed.

Anything which an ordinarily careful and prudent person would understand to be a warning that the roadway might be obstructed is sufficient. It is for the jury to determine whether the circumstances presented constituted a warning to such a person. The jury was entitled to find that, under the circumstances here presented, a waving flashlight, emitting a partially green light, would be understood by an ordinarily careful and prudent person to be a warning that the roadway ahead might be obstructed.

The jury could likewise have found that the truck and trailer came within the range of the automobile’s headlights *780.when it's driver was far enough away to have brought his automobile to a safe stop, and, further, that the several red marker lights on the truck were visible to the driver. Any of these circumstances could constitute a warning to an ordinarily careful and prudent person that the roadway was obstructed.

For the reasons stated, the judgment should be affirmed.

Weaver, C. J., Mallery, and Hill, JJ., concur with Ott, J.

November 3, 1960. Petition for rehearing denied.

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How this case has been treated — in progress