ordinarily prudent person would have. used under the then-existing circumstances, to try to escape any impending danger to him thus caused, and that if the driver was thus placed in danger, and then used the care as defined, he was not guilty of negligence, whatever he may have done under those circumstances in attempting to escape from any impending danger, and that mere error or mistake of judgment under such circumstances did not constitute negligence on his part.

In Grissom v. Seattle (1923) Wash. -, 212 Pac. 264, where plaintiff, whose automobile stalled on street car tracks, while attempting to get it off, assumed that the car would stop, until it was almost upon him so that he was forced to jump, it was held that the court could not hold that he was guilty of contributory negligence as a matter of law, in jumping on the running board of the automobile, instead of to one side and clear of the track. Here the court applied the rule that error of judgment is not necessarily negligence, and that the correct test is: Did the person act as a reasonably prudent person would have acted under the circumstances? which question, it was said, was one of fact for the jury, rather than of law for the court.

III. Accidents at railroad crossings.

a. Where driver attempts to cross ahead of train.

(Supplementing annotation in 6 A.L.R. 681.)

In Payne v. Shotwell (1921) 273 Fed. 806, certiorari denied in (1921) 257 U. S. 653, 66 L. ed. 418, 42 Sup. Ct. Rep. 94, where plaintiff stopped his automobile 50 yards from the railroad crossing where the view was unobstructed, and, seeing no approaching train, then permitted it to coast slowly and under full control toward the crossing, until a train which gave no signal was so close upon him that in attempting to cross ahead of it his car was struck, the court, in holding that the question of his contributory negligence, in view of the sudden emergency with which he was

con

fronted, was one for the jury, said: "To say that the accident would have been avoided, had he then [when he first saw the train] stopped, with the nose of the machine close up to the track, and that failure to then stop it was contributory negligence, begs the whole question. Perhaps he could have done otherwise than he did, when suddenly required to act in the position then confronting him; but assuming he might have instantaneously stopped the car, and that it would have been wiser to do so, instead of attempting to cross, it still remains that there was ground from which a jury might fairly infer that his attempt to cross was not the breach of an absolute duty to then stop, but was rather a mistake of judgment, made by a man confronted by an unlooked-for peril, unexpectedly brought about by the unanticipated and misleading negligence of the company in failing to blow the crossing whistle. Indeed, the situation as a whole was one where men of reasonable mind might reasonably differ in their conclusions; namely, where one such man might be of opinion that the decedent did not act with due regard to his safety, and where another could find he had done nothing and left undone nothing in the way of proper care and forethought."

In Corbett v. Hines (1922) 194 Iowa, 1344, 191 N. W. 179, reversing on rehearing (1920) Iowa, -, 180 N. W. 690, where deceased, a truck driver, was struck at a crossing where the gates had not been lowered, by a train which, although running at a speed of 50 to 60 miles an hour, gave no signals as it approached the crossing. at which the deceased's view had been obstructed until he was less than 20 feet from the track, it was held that it could not be declared that he was guilty of contributory negligence as a matter of law, in view of the fact that he had but about two seconds to extricate himself after his peril became known, and he so nearly succeeded in crossing ahead of the train that it only struck the rear end of his truck.

In Thomas v. Pennsylvania R. Co.

c. Where driver stalls engine on track. (Supplementing annotation in 6 A.L.R. 683.)

In Alabama G. S. R. Co. v. Molette (1922) 207 Ala. 624, 93 So. 644, where plaintiff's truck "stopped dead" on the track at a railroad crossing, and the plaintiff was still attempting to get it off the track when it was struck, it was held that the question of plaintiff's subsequent concurrent contributory negligence was for the jury if it should find that the engineer of the train knew plaintiff's danger, and that he was trying to get his truck off the track, and failed to do all that he could to meet the, emergency so presented, and this notwithstanding plaintiff's original negligence may have been the cause of his predicament.

d. Alternative of jumping from or v'emaining in car.

(Supplementing annotation in 6 A.L.R. 683.)

See Alabama G. S. R. Co. v. Molette (1922) 207 Ala. 624, 93 So. 644, as set out supra, III. c.

e. Where car shut on crossing by closing of gates.

No later decisions herein. For earlier cases, see annotation in 6 A.L.R. 684.

IV. Accidents at street intersections.

(Supplementing annotation in 6 A.L.R. 685.)

For cases involving collisions between street cars and automobiles at street intersections, see supra, II.

Applying the theory that one's own negligence precludes application of the emergency rule, it is held in the reported case (SOUTHALL V. SMITH, ante, 1194) that the driver of an automobile on which the brakes were defective was negligent in approaching a road intersection where another automobile was stalled, with a blind corner at his right, without slackening his speed or having his car under control, so as to be liable for injury caused by colliding with the stalled automobile, which became necessary by the sudden emergence of another machine from the intersecting street.

And in Alamo Iron Works v. Prado (1920) Tex. Civ. App. —, 220 S. W. 282, where the emergency was created by defendant's own conduct, it was held that his act in driving his truck against a bicyclist at a street intersection could not be excused under the doctrine of emergency.

So, in Simonson v. Huff (1923). Wash., 215 Pac. 49, where a negligently operated automobile stage struck a boy at a street intersection, it was held that defendant's violation of the rules of the road precluded invocation in his behalf of the doctrine of sudden emergency. See this case as quoted supra, I.

In McPhee v. Lavin (1920) 183 Cal. 264, 191 Pac. 23, where the plaintiff, in an effort to avoid a threatened collision at a street intersection with a machine approaching on his left on the wrong side of the street, speeded up his machine and turned at an angle to the left, it was held that the question of his contributory negligence in so doing, in view of the sudden emergency with which he was confronted, was for the jury. The court said that

the conclusion that plaintiff could not be held, as a matter of law, guilty of negligence in taking the course which he did, was clear, under the rule that one suddenly confronted with an unexpected danger may use such means for avoiding the danger as would appeal to a person of ordinary prudence in a like situation, without being held to strict accountability as to whether the course chosen is the most judicious or not. And see Howard v. Worthington (1920) 50 Cal. App. 556, 195 Pac. 709.

And that a sudden emergency may justify an automobile driver in turning to the left in violation of ordinance and statute, in an attempt to avoid a collision at a street intersection with a boy on roller skates, who without warning suddenly turned in front of the automobile, see Burlie v. Stephens (1920) 113 Wash. 182, 193 Pac. 684.

In Kearney v. Castellotti (1921) 55 Cal. App. 541, 203 Pac. 1029, where defendant made a turn from the wrong side of the street into an intersecting street, it was held that the court could not declare, as a matter of law, that the plaintiff was guilty of contributory negligence in veering to the left in attempting to avoid a collision, instead of slowing down or turning to the right into the other street, even though such course might have been safer, since, under the circumstances of the sudden emergency, he was not required to adopt at his peril the safest course, the reasonableness of his effort being a question for the jury.

In Marshall v. Olson (1922) 102 Or. 502, 202 Pac. 736, where plaintiff, in attempting to avoid a collision with another automobile at a street intersection, turned sharply to the left in violation of a city ordinance, it was held that such conduct, although ordinarily an act of negligence, was excusable if, in view of the sudden emergency with which the driver was confronted, it was the course which apparently would avoid a collision. The court said: "The rule has been established by this court that a violation of a city ordinance regulating the speed of vehicles is negligence per se. . . It would seem that

the same rule ought to be applied to the matter of turning at intersections, and the like, as far as regulated by ordinances or state laws. But this must be taken with some degree of qualification; so that if it is necessary in an emergency, under all the circumstances, to avoid an accident, to turn otherwise than the ordinance or law prescribes, it could not be counted upon as evidence of negligence, or as negligence itself. Before this qualification can be relied upon, it must, of course, appear from the evidence that a sudden and perilous emergency was present, sanctioning, in the judg ment of reasonably prudent men, the doing of the act which under other circumstances would be a technical breach of municipal regulations. In cross-examining the defendant plaintiff's counsel dwelt at length upon that feature of the defendant's turning his car to the left of the center of the intersection, as a violation of the city ordinance. As between the parties to the action it would be unreasonable to maintain that a man would be culpably negligent, under such circumstances, if he turned either to the right or to the left to avoid imminent danger of collision, when the peril could be escaped only by such action, and that, too, without injury to anyone else."

In Norwood Transp. Co. v. Bickell (1922) 207 Ala. 232, 92 So. 464, where plaintiff's intestate was killed at a street intersection in a collision between the automobile which she was driving and defendant's truck, it was held that the question of decedent's concurrent subsequent contributory negligence was one for the jury under the emergency doctrine, such negligence having been pleaded in answer to a plea of subsequent negligence upon the part of the defendant, the evidence having been such as would have justified the jury in finding that plaintiff's intestate, after discovering her peril, made an effort to avoid the collision, and this even though she was in the place of peril because of her own original negligence.

In Louthan v. Peet (1919) 66 Colo. 204, 179 Pac. 135, where plaintiff was

struck and injured by defendant's automobile, which was turning a corner at a street intersection, it was held that evidence to the effect that the time from the moment when the automobile turned the corner until it stopped upon the parking on the other side of the street where it had been run in an attempt to avoid striking plaintiff and her son, was no more than a few seconds, warranted an instruction as to the duty of one placed in sudden peril.

In Benjamin v. McGraw (1919) 208 Mich. 75, 175 N. W. 394, where plaintiff, a pedestrian, was struck by defendant's automobile when it came over the curb where it was claimed it had been driven in an attempt to avoid injuring plaintiff, it was held that the question of defendant's negligence in so attempting to avoid striking the plaintiff was one of fact for the jury.

Cal.

IV. [a]. (New) Accidents at intersection of highway and private way. In Uhl v. Fertig (1922) App. 206 Pac. 467, it was held that the driver of an automobile was not guilty of negligence as a matter of law in swerving to the left side of the road, instead of continuing on the right-hand side of the road, to avoid an automobile over which he had the right of way, which suddenly emerged from an obscured private driveway on his right, although, had he done so, the accident probably would not have occurred.

And in Lammers V. Carstensen (1922) Neb. 191 N. W. 670, where plaintiff approached a highway over a private driveway from which the view was obstructed until the side of the highway was reached,

at which point he saw defendant's automobile approaching on his left at high speed, and, deciding that he did not have time to cross, stopped, but was struck by the approaching machine, which had attempted to pass behind him, in holding that, in view of the sudden emergency, the question of his contributory negligence in having stopped instead of attempting to cross ahead of the approaching car was one of fact for the jury, the court said: "Whether the defendant was negligent in stopping his car as he did was a question for the jury to determine. A sudden emergency was presented by the situation, in which all the parties were placed in a position of peril, and quick determination and quick action were required. If the plaintiff's car was moving at the rate of speed estimated by some of the witnesses, or if the distance from the scene of the accident was as given by one of the witnesses, approximately two seconds elapsed between the time the approaching car could have been. seen and the impact. Taking any view of the testimony, it is plain that but three or four seconds intervened between the time the plaintiff's car could have been seen and the collision." V. Where automobile driven on sidewalk to avoid other vehicle.

(Supplementing annotation in 6 A.L.R. 686.)

In Rhodes v. Firestone Tire & Rubber Co. (1921) 51 Cal. App. 569, 197 Pac. 392, where defendant's automobile truck, after being struck by an automobile, continued along on the wrong side of the street and partly over the curb onto the sidewalk, where it collided with plaintiff's truck, which had been driven onto the sidewalk to avoid a collision, it was held, in answer to the contention that the defendant was not answerable for the results of the collision, because it was brought about by a sudden emergency created through no fault of his own, that while a person in great peril, where immediate action is necessary to avoid it, is not required to exercise all that presence of mind and carefulness which are justly required of a

careful and prudent man under ordinary circumstances, nevertheless, while the collision between the two trucks would probably never have occurred except for the presence of the automobile, the court was justified in concluding that the driver of defendant's truck had ample time and space to have avoided the collision with plaintiff's truck, after becoming disengaged with the automobile.

VI. (New). Where attempt is made to avoid effect of violation of traffic rule.

In Shupe v. Rodolf (1921) 185 Cal. 371, 197 Pac. 57, when plaintiff, a motorcyclist, turned to the right to avoid an approaching automobile which was on the wrong side of the street, but defendant at the same time turned to the left, it was held that, since the situation of imminent danger thus created required instant action, the question whether plaintiff's failure to turn further to the right or to have turned to the left was due to lack of reasonable care was one for the jury, although one of the other courses might have led to safety, the court saying that under the circumstance of the sudden emergency the taking of the course which was not the safest did not necessarily constitute negligence.

And in Columbia Taxicab Co. v. Roemmich (1919) Mo. App. 208 S. W. 859, it was held that one who drove an automobile along the right side of a street, and saw approaching another automobile which was on the same side of the street, could not be declared negligent as a matter of law in attempting to turn and pass to the left when he discovered that the other car, which was almost upon him, apparently did not intend to turn out.

And in Shelley v. Norman (1921) 114 Wash. 281, 195 Pac. 243, where the driver of an automobile was injured in a collision which occurred when he attempted to turn to the left to avoid a car which was approaching from the opposite direction on the wrong side of the road, the court applied the emergency rule, holding that in such a case the question of such driver's

contributory negligence is one of fact for the jury.

So, in Hammer v. Connecticut Co. (1919) 94 Conn. 127, 108 Atl. 534, where the plaintiff contended that he was driving his automobile on the right side of the street when he was confronted with a head-on collision with another automobile, traveling at a reckless speed in the opposite direction on the wrong side of the street, and that the plaintiff suddenly turned to the left to avoid a collision, the court, in holding erroneous an instruction which in substance told the jury that, if the plaintiff turned to the left when the other automobile approached, he was violating a rule of the road and was guilty of negligence, said: "If the jury found that the plaintiff was driving his automobile north on the east side of the roadway, and that Rankin was driving an automobile south at a reckless rate of speed on the east side of the roadway, directly toward the plaintiff's automobile, and that the plaintiff, in order to avoid a head-on collision, suddenly turned his automobile. to the left, and while the plaintiff was so doing Rankin's automobile struck the rear of the plaintiff's automobile and threw it on the tracks, then the jury might reasonably have found that the plaintiff was free from negligence in turning suddenly to the left to avoid the collision." Likewise, it was held in Wollaston v. Stiltz (1921) — Del. -, 114 Atl. 198, that if the jury was satisfied from the evidence that the driver of the defendant's automobile was suddenly confronted with a horse and buggy approaching from the opposite direction, and without knowledge of the presence of the plaintiff on the right side of the road, and suddenly turned his car to the left to avoid a collision with the buggy, it was a question of fact for the jury whether, under the circumstances, the driver of the car was negligent.

And in Wallace v. Bergius [1915] S. C. 205, 7 B. R. C. 692, 52 Scot. L. R. 130, [1914] 2 Scot. L. T. 440, the driver of a motor car was held not to have been guilty of contributing