1. To me the record appears to be conclusive of defendant's negligence and that it must be said that his action in endeavoring to pass between the oncoming cars was so hazardous that no person *Page 530 in his senses could possibly have adopted a such a course as compared with the simple way out of the danger by slowing down and swinging to the right onto the shoulder of the highway. At the point where the collision occurred the paved highway is straight, and at some distance south there is a curve toward the west, but the view toward the north is open and the curve had no effect upon the situation. The Peck car and the defendant's car were proceeding at 45 to 50 miles an hour toward each other. The Michigan car came up behind the Peck car and was following it at a distance of 25 to 50 feet in its rear. At a place stated by the defendant to be about 200 feet from where defendant's car then was, the Michigan car swung to its left for the purpose of passing the Peck car. In so doing it swung its left rear wheel momentarily off the pavement, causing a spurt of dust to arise. The Michigan car then swung more to its right and toward the center line of the pavement. Before the collision occurred it had passed the Peck car a short distance, estimated by one witness at ten feet and by another stated to be at a point about where its windshield was opposite the front end of the Peck car. It was also well over toward the center line before the collision occurred. As the Michigan car drew up alongside the Peck car, Peck swung to the right onto the shoulder in order to escape the consequences of the imminent collision between defendant's car and the Michigan car. According to the evidence, the defendant came straight down his own lane of traffic, made no effort to slow up until just about the time of the impact, when he testified that he "instinctively" put on his brakes, seized hold of the wheel, and, as he expressed it, "shoved it through the wind-shield." He said that he turned slightly to the left, and the left front wheel of his car was perhaps across the center line of the pavement. From the photographs it appears that he struck the Michigan car on its left front. The driver of the Michigan car was killed. Defendant's explanation of why he proceeded straight down the highway was that he was endeavoring to pass between the two approaching cars, which he says at the time when the Michigan car turned out appeared to be about eight feet apart. It is agreed that the Michigan car was going between 55 and 60 miles an hour. *Page 531 Such being the case, the distance which would be required for it to swing out to the left, where defendant first saw it, and pass the Peck car would not be less than 150 to 200 feet; and, since the defendant was also traveling at approximately 45 miles an hour, the distance between him and the Michigan car when it first turned out must necessarily have been considerably greater than he estimated, probably not less than 300 feet, and more likely was considerably more. The Michigan car was coming at a high rate of speed and the Peck car around only ten miles an hour slower. To attempt to drive a car through an eight-foot space between them was hazardous in the extreme. No prudent person would attempt it if any alternative were available. Here defendant must have had over a city block in which to get out of the impending peril. Instead of slowing down and turning to the right, as any prudent person would have done, he headed for the place of greatest danger. Turning to the right is required by statute in case of meeting cars, and long habit in compliance with the statute and the custom has made it instinctive to do so. Measured in units of time, automobile drivers are frequently, almost constantly, confronted with the necessity of making decisions within very short periods, frequently within fractions of a second. It is not the time, stated in seconds, which measures the character of the driver's conduct. Time is always short. But if there is adequate distance to maneuver a vehicle, a driver as a matter of law should be held negligent who takes a course, as here, which is so hazardous that to any sane driver it must spell certain death to someone. The speed of vehicles and the awkwardness and recklessness of an ever-present percentage of drivers make these road hazards inevitable; but when as here the defendant had at least a city block in which to maneuver his car out of a hazardous situation he can hardly be excused for having chosen a course comparable in hazard only to the Charge of the Light Brigade at Balaklava. No man of ordinary prudence who drives a car could justify such a course. To slow down and turn to the right onto the shoulder was so obviously the only safe course that it should have been "almost instinctive." Failure to slow down immediately is alone sufficient to convict defendant of negligence *Page 532 as a matter of law. The statute prohibits driving at a speed greater than is "reasonable and proper." There are among automobile drivers two kinds of extremely reckless people, those who try to pass another car when space does not permit and those who, seeing an oncoming car attempting such an act of recklessness, stubbornly refuse to slow down to avoid the danger. The defendant in this case was evidently a conspicuous member of the second type. The shoulder was smooth and hard and flush with the pavement. The Michigan car at no time occupied more than a few inches of it and was almost immediately back on the paved part of the highway. There was at all times, and particularly after the Michigan car swung to its right, abundant room for defendant to drive safely on the shoulder. Peck did just that in his effort to escape. Defendant should have anticipated that the Michigan car would swing to the right to avoid defendant. That is what both statute and natural instinct would impel him to do, notwithstanding his hazardous conduct in attempting to pass Peck.
2. I disagree with the paragraph numbered 2 of the majority opinion. The statute permitting exceptions to the charge on the motion for a new trial permits just what was done here, it seems to me. The failure to give the right rule as to emergencies went to the very heart of plaintiff's case. The charge was faulty on the very point most vital to plaintiff — the exception or condition without which the emergency rule should never be given. The impression necessarily left with the jury was that where one is confronted by imminent peril and in his confusion takes a wrong course he need not be found guilty of negligence even if the course chosen by him was in fact so hazardous that an ordinary prudent person under similar circumstances would have acted otherwise. This was something more than the obvious verbal "misstatement" of fact or "technical inaccuracy" referred to in Steinbauer v. Stone,85 Minn. 274, 88 N.W. 754. The charge gave the jury the wrong impression on a "controlling proposition of law." The statute may be a bad one, but it is not for us to repeal it. It was intended to favor the losing party, not to add to his burdens by compelling him to except both at the trial and on the motion. So interpreted, it would be meaningless. *Page 533
3. I agree that it was not error to fail to clarify the distinction between common-law negligence and the violation of a statutory duty any further than was done by the court because the court charged in the language requested by plaintiff. I think, however, that the distinction carefully made in Chandler v. Buchanan, 173 Minn. 31, 35, 216 N.W. 254, and in Dohm v. R. N. Cardozo Bro. 165 Minn. 193, 206 N.W. 377, should be a guide to trial courts in the future.
4. I also agree that there was no prejudicial error in regard to the definition of proximate cause, though I much prefer that given by Mr. Justice Mitchell in Christianson v. C. St. P. M. O. Ry. Co. 67 Minn. 94, 97, 69 N.W. 640.
I think the case should be reversed and be remanded for a new trial on the question of damages only.