I am obliged to dissent from the foregoing opinion because after careful reading and consideration of the evidence I am convinced that the verdicts for the defendant are against the overwhelming preponderance of the evidence and that the trial justice clearly erred in not granting plaintiffs' motions for new trials on this ground.
In these cases there is no question of the contributory negligence of any of the plaintiffs. The sole question is that of the negligence of the defendant.
Plaintiffs were riding as guests in an automobile driven by defendant over the West Shore road, one of the main highways in the town of Warwick. The road bed was tar macadam, twenty-four feet wide, with gravel shoulders. Defendant drove his automobile so far off the macadam road that his automobile ran into a large tree which was 2.8 feet from the edge of the macadam. As a result of the collision one of the occupants of the automobile received a broken leg and another a broken arm, and all of them were seriously injured.
Defendant testified that he was driving his automobile between thirty and forty miles an hour just before the accident; that as he approached the place of the accident he saw an automobile coming out of a street on his left, about two hundred and fifty feet ahead of him, and turn towards him; that as this automobile made the turn its lights flashed on his windshield and then it turned to its right and left his way clear; that the lights on the approaching automobile blinded him as it turned and that he turned his automobile to the right to pass and struck the tree. Defendant also testified that he did not see the tree until he was fifteen to twenty feet from it when he tried to stop his automobile by applying the brakes.
Defendant should have seen the tree before he was within such a short distance of it. He testified that there was no steam or fog and that he could see clearly. The lights on his automobile should have projected sufficient light ahead *Page 271 so as to render clearly discernible all substantial objects within the area of at least two hundred feet in front of his automobile. Chap. 1195, P.L. 1928.
What did the law require the defendant to do under the facts and circumstances of this case? The majority opinion cites three cases from the Supreme Court of Maine and one case from the Court of New Jersey to the effect that under certain conditions it would doubtless be the duty of the driver of an automobile, when blinded by dazzling lights, to have his car under such control that he would be able to bring it to an immediate stop. One of the cases cited — Peasley v. White, (Me.) 152 A. 530, — was that of a guest against the driver of an automobile in which the jury returned a verdict for the defendant. The court held that the evidence showed that the defendant was negligent and that the finding of the jury was either the result of a misconception of the law and the facts of the case or a bias or prejudice upon which no just verdict could stand and ordered a new trial. In another of the cases cited, Cole v. Wilson, (Me.) 143 A. 178, the court held that, if the operator of an automobile is blinded by a light from another automobile so that he is unable to distinguish an object in front, reasonable care requires that he bring his vehicle to a stop and failure to do so justified a charge of negligence. The court cited cases from six states in support of this principle. Another case cited is that of House v. Ryder, (Me.) 150 A. 487, in which the court said: "No man is entitled to operate an automobile through a public street blindfolded. When his vision is temporarily destroyed by a glaring light, it is his duty to stop his car." This statement of the duty of the driver of the automobile is the same as that made by the court of New Jersey in the cases of Osbun v. De Young,122 A. 809; Hammond v. Morrison, 100 A. 154. Howard v.Reid, 233 N.Y.S. 381, was an action by a guest in defendant's automobile for injuries sustained when the automobile ran into a tree. The jury returned a verdict for the defendant. The Supreme Court held that this verdict was contrary to the *Page 272 weight of the evidence and ordered a new trial. Sheean v.Foster, (Cal.) 251 P. 235, was a suit for injuries received by plaintiff when riding in defendant's car as a guest. While the driver of the car was looking for a switch key the automobile ran into a tree standing near the highway. The jury returned a verdict for the defendant. The appellate court ordered a new trial because the evidence did not show that the defendant exercised ordinary care for the safety of the plaintiff.
In this case the approaching automobile passed on its right of the road. Defendant had twelve feet of the macadam within which to pass this automobile. After this automobile had passed, defendant had the entire width of the tar road, as no other vehicle was approaching him. If the defendant had reduced the speed of his automobile to a reasonable and proper rate of speed, undoubtedly he could have passed on the macadam road or, at least, have stopped his automobile in time to have avoided driving it into a tree. The tree in this case was a large one and had been growing near the edge of the tar road for many years. The tree did not cause the accident; the accident was caused by the negligence of the defendant in driving his automobile against the tree. The verdicts for the defendant cannot be justified on the evidence which clearly proved negligence on the part of the defendant.
For the reasons stated the plaintiffs' exceptions to the decision of the trial justice denying their motions for new trials should be sustained.