¶1(dissenting)—If this court is to entertain an affirmative defense of contributory negligence on the part of a favored driver, I can agree with Judge Hale’s dissenting opinion.
¶2However, I believe that the favored driver should not be barred from recovery in intersection accident cases except where there is deception on his part or where he had the last clear chance to avoid the collision. My reasons are stated in my concurring opinion in Zahn v. Arbelo, ante p. 636, 434 P.2d 570 (1967), in which I said:
I would abandon rules of “relative” rights of way which have developed from Martin v. Hadenfeldt, supra[157 Wash. 563, 289 Pac. 533 (1930)], and, instead, bar recovery by the favored driver in only two circumstances; i.e. the true deception situation as described in Mondor v. Rhoades, 63 Wn.2d 159, 167, 385 P.2d 722 (1963), where the actions of the favored driver “deceive the reasonably prudent driver on the left to such an extent as to entrap him”; and in cases involving last clear chance. See Barrett v. Inglin, 46 Wn.2d 317, 281 P.2d 236 (1955), and cases cited therein.
By such a ruling, this court would give substance to the rule, stated in the majority opinion, that “The favored driver on an arterial protected by a stop sign has one of the strongest rights of way which the law allows,” and would return these right-of-way cases to their proper perspective.
¶3I would apply this rule both with respect to accidents occurring at controlled intersections and uncontrolled intersections. The applicable statutes grant a right of way to the favored driver in either instance and impose upon the disfavored driver the duty to yield such right of way to him.
¶4*662Therefore, I dissent from the majority opinion for two reasons: (1) there is no evidence of deception on the part of the favored driver in this case nor claim that he had a last clear chance to avoid the accident, and (2) if his alleged contributory negligence is to be considered, there is no substantial evidence in the case to support it.
¶5I would reverse the judgment and remand for a new trial on the issue of damages only.