I concur. The defendant's own testimony reveals that he did not look to the south along the intersecting highway before reaching a point where observation was ineffectual. The situation, therefore, is the same as though he had driven heedlessly through the intersection without looking at all. He drove his fare into a position of danger without having placed himself in a position to determine whether he, under the statute defining the right of way, had the right to proceed; he negligently failed to inform himself of the hazard presently encountered so as to exercise that care toward his passenger which the law enjoins.
Such situation differs from one where a driver, having performed the duty of observing, exercises a reasonable judgment as to the right of precedence and, absent evidence that his right was not going to be respected by the driver of another car, proceeds. Under such a state of facts, it is usually for the trier of the fact to evaluate such driver's conduct; although, in some circumstances such driver would, in my opinion, be free from negligence as a matter of law.
I appreciate that under the facts of the instant case the difficult question is whether defendant's conduct can be said asa matter of law to be a contributing cause of plaintiff's injuries. If it cannot, then though a carrier's servant drives into an intersection at a reasonable rate of speed, but utterly oblivious of the traffic hazards, a jury may adjudge him free of actionable fault, if it turn out that he had the statutory right of way.
One need not attempt to define the difference — assuming any exists abstractly — between due care and extraordinary care. Suffice, here, to say that the driver of the cab owed to the plaintiff the duty of being alert and watchful at all times and of acting prudently on observing a situation which reasonably appeared to present a hazard to the safety of his *Page 307 fare. That he did not exercise the vigilance which was a prerequisite to a prudent choice between courses of conduct open to him, he himself admitted. That he might have avoided the accident by a slight acceleration of speed or by slowing down, after becoming cognizant of the approach of the other car, is demonstrated by the physical facts. Had he made such choice under the exigency confronting him, his choice of other than the most safe of the courses open to him, would not be negligence in law. But here his failure to observe, evaluate and act should in my opinion, be held to be the cause of his vehicle being placed in the path of the other car.
PRATT, J., on leave of absence.
MOFFAT, J., participated in the hearing but died before publication of the opinion.