In his earnest and ingenious motion for rehearing respondent re-argues and further urges upon us that he made a jury issue upon the humanitarian theory of negligence, and that, if he did not the cause should be remanded for retrial upon primary negligence theories. His motion has been carefully considered but it does not raise any questions not heretofore raised and ruled.
Our opinion filed rules that this case presents a situation as to which we decline to apply the humanitarian rule of negligence. Plaintiff's own testimony affirmatively shows that defendant's automobile was in his sight and under his constant observation as it was approaching and as he was crossing the intersection. However earnestly we are urged to do so we must decline to close our eyes and ears to respondent's own testimony and rule that he was oblivious. He testified he could have stopped in ten feet. We cannot disregard respondent's own testimony. No explanation of it was attempted to be made by him. We must accept it. Under prior adjudications respondent's position of peril existed for only two-thirds of a second or at most only a second before the impact. It is our considered opinion that under the circumstances of record here we should and we do decline to so extend the humanitarian rule as to hold that a jury case has been made. The inference of the existence of negligence cannot be left to speculation.
As to remand. Respondent's own testimony that merely to try to beat the defendant's car across the intersection, he drove on across in spite of the fact that he saw appellant's car rapidly approaching and that he had the ability to quickly stop, precludes his recovery. We cannot approve and have consistently condemned racing across intersections in an effort to beat another motor vehicle across. And we cannot now approve it.
The respondent's motion for rehearing is overruled. It is so ordered. *Page 782