"Our own sense of self-restraint" should not excuse us from performing the duty which the law imposes upon this court. The duty to say whether or not there is a question of fact for submission to a jury must lie somewhere if the jury system is to survive in the administration of justice. Under our system that duty is imposed on the trial court, subject to review here. The fulfilment of that duty does not make this or the trial court a "super-jury," because we do not pass upon questions of fact. Our duty lies in another field. We simply say whether reasonable minds might differ as to the inferences to be drawn from the facts in evidence. No question of "reasonable doubt" is involved.
I think that the trial court was right in concluding that no question of fact was here presented. The presumption of due care does not survive, but vanishes, when all the facts are shown by undisputed evidence. Here there were two witnesses who saw the whole occurrence in broad daylight without anything to distract their attention. The highway was straight and level. Anderson either failed to look or ignored the approaching cars. Defendant's speed of 50 to 55 miles an hour under the conditions was as a matter of law not unreasonable as long as plaintiff was walking on the shoulder. To say that it was would be to ignore everyday experience and practice of prudent drivers.
Conditions here, in my opinion, conclusively rebutted the statutory presumption. To hold otherwise would be to ignore all the progress that has been made in perfecting cars and roads. Here was no speed mania to be judicially deplored. Defendant's fault, if any, was in failing to swerve to the right sufficiently to avoid Anderson, who had got to the center line and appeared to be confused. But to say that defendant's speed led Anderson into the place of danger is to rest judicial opinion on altogether too tenuous a reason. Anderson, without first ascertaining if the movement could be made in safety, attempted to cross a main trunk highway upon which traffic might well be expected from either or both directions. He voluntarily placed himself where cars must necessarily pass close to him. He succeeded in crossing defendant's *Page 587 lane of traffic in safety, so it must be conceded that any possible miscalculation of defendant's speed did not affect his action. No act of defendant led him into the position which confronted him with an emergency, and hence defendant was not responsible for his lack of discretion while so confronted. Anderson v. Davis, 151 Minn. 454, 457-458, 187 N.W. 224, and cases therein cited. As the majority say, it was the appearance of Hilmo's car that frightened Anderson and caused his confusion. Had he continued across, the evidence shows he would have survived. Instead he became bewildered and did the most hazardous thing he could have done. He changed direction and stepped back in front of defendant's car just in time to be hit. Had he stayed in the center or continued his course he could have been easily avoided by both cars. I cannot see how reasonable minds could acquit him of negligence in placing himself between the oncoming cars as near as these were, much less in suddenly changing direction and stepping back into defendant's lane of travel. Pedestrians of ordinary prudence do not do such things. Goodson v. Schwandt, 318 Mo. 666,300 S.W. 795; Simpson v. Hyde (La.App.) 144 So. 793.
In the Goodson case the syllabus states [318 Mo. 666]:
"Where it is clear from the evidence that at the instant the pedestrian, attempting to cross an east-and-west street from its south side, discovered that he was in danger of being run over by a westbound automobile, he was out of the path of defendant's eastbound truck, and becoming confused, suddenly jumped back towards the south and was instantly struck by the corner of the truck's left fender, his jumping back was the proximate cause of his injuries, and there can be no recovery of damages from defendant on account of his injuries."
In the Simpson case [144 So. 799] the court said:
"Plaintiff's entering upon the highway when he knew a car was coming toward him and then forgetting all about its existence was negligence, and this act alone was either the proximate cause of the accident, or, to say the least, contributed to it to such an extent as to bar his recovery of damages. Furthermore, when he arrived *Page 588 at the middle of the pavement, and stopped, he justified the defendant in believing that he would stand still until all danger was over. Then when he started running he created an emergency for which he alone was responsible. Defendant was justified in acting in this emergency as best he could, and he is not liable for having erred in his judgment, if it can be said that he did err."
STONE, JUSTICE, concurs in the opinion of Mr. Justice Loring.