Mr. Justice Givens has written his views of this case which follow in part as a dissenting opinion. He has recited the principal essential facts in the case and the justices unanimously concur in his views as to the non-liability of appellant James R. Bothwell; and we therefore refer to his opinion for our holding on that branch of the case. *Page 110
As to the liability of appellant Beth Bothwell, the majority of the court do not concur in Justice Givens' views and for that reason we are writing the following:
Miss Bothwell was driving her father's car for the school authorities, on the business of the school and under the direction of the Superintendent Mr. Smith and Finance Manager Mr. Wakem, and Miss Call, the Coach. Wakem was directed by the superintendent to take the lead and Miss Bothwell was to follow. They were instructed to make a speed of not over 40 to 45 miles per hour and the evidence discloses that they did not exceed that speed. When this accident occurred Wakem was in the lead on the right side of the road and somewhere from a half block to a quarter of a mile ahead of the Bothwell car. The truck which collided with the Bothwell car was unquestionably traveling on the wrong side of the road, that is, on the north side, as it was proceeding east. Wakem avoided the collision by entirely leaving the pavement and going into the ditch Miss Bothwell, on seeing the Wakem car go into the ditch and the truck approaching, slowed down her car and attempted to stop and the car skidded. It was struck by the truck and turned completely around, so that after the collision the car stood facing the east from which direction it had been traveling. That the driver of the truck had been drinking and was at least in a state of intoxication, is established beyond a reasonable doubt.
The driver of the Bothwell car could have gone into the ditch and avoided colliding with the truck, but that would have been a dangerous venture and it would be unreasonable to say that she was guilty of negligence because she didn't make such venture. Furthermore, it would be asking too much of her to require her to leave the road and go into the ditch at the hazard of injuring or killing half a dozen girls in her car. Wakem in the lead took that chance and succeeded, but the evidence shows that it was at a risk which would probably be branded as negligence on his part had he killed or crippled some of his passengers. We do not understand the law to require a driver to entirely abandon the highway to a drunken or reckless driver, to avoid collision with him, unless there is a reasonably safe way of *Page 111 escape open to a reasonably prudent, average driver, under the existing circumstances.
The fact that the Bothwell car skidded is not, under the circumstances here disclosed, evidence of negligence on the part of the driver of the car. Nor is the fact that she pressed the brakes hard enough to skid the car, of itself evidence of negligence where she was confronted, as here, with an approaching truck on her side of the road. As we view the record, there is nothing to justify the contention that, had she driven straight ahead, she would have missed the truck, for it appears that the truck had driven the Wakem car off the road and the Bothwell car had skidded and was cross-ways of the road where the truck immediately hit it on the right door before the car could move farther in any direction. The impact of the truck is what turned the car completely to the east, so that it is clear that the truck had not made any material change in its postion from appellant's right-hand side of the road after the brakes were applied by Miss Bothwell, and consequently, if Wakem could not pass the truck, evidently Miss Bothwell could not do so.
As we read the record in this case, we are unable to find any act or omission, on the part of the driver of the Bothwell car, which constitutes actionable negligence. Here, conceding, as we must, the most that can be claimed for the evidence, we are confronted with a question of law as to whether it is of such a substantial character as will support a verdict and judgment for negligence.
The judgment will therefore be reversed both as to James R. Bothwell and Beth Bothwell, with costs to appellants, and the cause is remanded with directions to dismiss the action.
Budge and Holden, JJ., concur.