The opinion
Mr. Justice Denison
specially concurring.
I concur in the result but not in all of the opinion. The city negligently failed to light a sand pile in the street. The plaintiff ran into the pile and was damaged. He was running in the night with headlights so weak that he could see but eight or ten feet ahead of his car and did not see the sand pile until almost upon it, within say six feet. Was this contributory negligence? Contributory negligence is lack of ordinary care which, if exercised, would have prevented the injury. I will assume that if the plaintiff had driven so slowly that he could have stopped within eight feet, or had had headlights such that he could have seen the pile in time to stop at the rate he ivas moving, the accident would not have happened; but ordinary care in any case is such kind and degree of care as ordinarily prudent men ordinarily use under the circumstances of such a case, and, though some cases go to that extent, I cannot say, as a matter of law, that the man of ordinary prudence does not, under the circumstances here shown, ordinarily drive at such a rate that he cannot stop within the scope of his headlights. I think that a matter for the jury. Hence I concur in Mr. Justice Adams ’ conclusion,