I concur in the conclusion that the evidence shows that in law Bullock was negligent.
The duty to look before entering an intersection is directly related to the speed with which one intends to traverse the intersection. The greater the speed intended the earlier one must size up the situation to determine whether that speed may be used. It was the failure to maintain this relationship which constituted Bullock's negligence, granted that entering an intersection at 25 miles an hour was not itself negligence. To traverse an intersection which is 45 feet wide at such speed that one cannot stop within 25 feet means that the vehicle would go more than half the width before the driver could stop it. Certainly it would be incumbent upon him to be quite sure that nothing might reach a point on his pathway at the same time he did where he had so little control of his vehicle as to be unable to stop in less than 25 feet. And the evidence shows that not only was he not sure that another would not be in his way but that he never looked in time to determine how he should regulate his speed. Such driving through intersections is a constant occurrence. The law should pronounce it indisputably negligent.
Absent any restrictions as to speed of entry and traverse set up by ordinance, a rough formula of care would be: Where there is any likelihood that two cars may reach the same point at the same time if either car proceeds at the speed it is going when the other driver sees or should see it, the driver of each car should so regulate his speed that he may easily stop within the distance between the point of observation and the point where their paths will cross. If all persons traversing intersections would observe this rule there would be fewer intersection collisions. Standing solely on one's supposed right-of-way where that may, under the rule giving it to him who first enters, depend on a matter *Page 510 of inches, does not absolve from negligence the person who (it may turn out after the event) actually possessed it, if he failed to use the care which the traffic conditions imposed upon him. But great care should be used to distinguish those cases where one's negligence actually converged with another's in producing the accident and those cases where it is attempted to measure the negligence of one by his failure to avert the consequences of the other person's negligence. Such latter case is Farrell v.Cameron, 98 Utah 68, 94 P.2d 1068. Another illustration would be where one enters the intersection definitely with the right-of-way and with due care in relation to any other alsoexercising due care and assumes his right-of-way to his injury. He should be allowed to recover.
In this case Bullock was driving per se negligently; that is, in relation to another exercising due care. His driving would have been negligent if Luke had been nowhere near, although it might then have resulted in no harm. But had he been driving carefully as measured by his traffic relationship to another also driving with care, he should not then have visited upon him the results of a collision on the theory that it was not only his duty to drive with care in relationship to another's driving with care but to drive in such fashion as to avoid the result of the other's negligence, especially where that negligence might be termed dynamic in character. In the dissenting opinion ofHansen v. Clyde, 89 Utah 31, 45, 56 P.2d 1366 at page 1372, 104 A.L.R. 943, attention was called to the difference between that type of negligence where one sets the stage onto which another walks, as pointed out in the fifth, sixth and seventh categories of the situations there set out, and other types of negligence where the situation rapidly changes. While one must exercise that degree of care which the situation dictates even though the situation has a negligence factor in it created by another, we must be careful not to stretch contributory negligence to the point where we make it incumbent upon one not only to drive carefully himself but to drive so carefully *Page 511 as always to be prepared for some sudden burst of negligence of another and be able to avoid it. See Dalley v. Mid-WesternDairy Products Co. et al., 80 Utah 331, 15 P.2d 309. The duty of A to avoid the negligence of B should only begin where that negligence was or should have been timely apparent to A, and apparent that it would in all probability continue, and A then failed to use such care as a prudent man would have used in like circumstances to avoid it. In Farrel v. Cameron, supra, and I think somewhat in Dalley v. Mid-Western Dairy Products Co., supra, we went quite far in placing upon one party the duty to avoid the consequences of another's negligence under circumstances where I doubt whether that duty had come into being.
But in this case we are not so doing. The difference in principle in this case and in those cited is momentous and profound. This ruling encourages both drivers to be careful; the other teaches the careless fellow that he can require one in a traffic relationship with him to exercise so great carefulness as to avert the effects of his own carelessness, and penalizes the careful one for not doing so.