Here there were no unusual or extenuating circumstances excusing plaintiff's failure to see defendant's car until it was too late. Despite the comfort which plaintiff's brief writer professes to take, in this respect, from what he considers to be the abandonment of the older and the following of a new trend in the later decisions of this Court, a perusal of such recent cases as Hett v. Duffy, 346 Mich. 456, and Shumko v. Center, 363 Mich. 504, touching this subject, discloses that even today in this Court there is still some life left in the old theory of contributory negligence as a matter of law under certain circumstances. We think they exist here and that, accordingly, the summary judgment in favor of defendant should be affirmed, with costs to him.
There was evidence of plaintiff Knickerbocker's observation prior to entering the highway, and there was testimony from which the jury could have inferred that his view of approaching danger was obscured by the truck crossing the highway, or by fog, or both. Under this record, the circuit judge was right in holding that negligence and contributory negligence were issues of fact for the jury. Ware v. Nelson, 351 Mich. 390; Bartlett v. Melzo, 351 Mich. 177. Cf. Churukian v. LaGest, 357 Mich. 173; Schumko v. Center, 363 Mich. 504. It should be noted that the burden of proof on the latter issue was on defendants. Court Rule No 23, § 3a (1945). See amendment effective June 1, 1958, 352 Mich xiv. — REPORTER.