(dissenting)—I dissent. This is an uncontrolled intersection collision case. As the majority point out, the *385excessive speed of the defendant-driver is conceded, and the sole issue is whether the plaintiff (the disfavored driver) was contributorily negligent, as a matter of law, and therefore barred from recovery.
No citation of authority is necessary to establish that, by his failure to yield the right of way, the plaintiff was contributorily negligent, as a matter of law, unless he could establish that he had been “deceived” by the defendant-driver’s wrongful, negligent, or unlawful operation of his car into assuming that he (the disfavored plaintiff) had the right to proceed across the intersection.
After quoting the statute, and the “deception” rule, as originally set forth in rule (4) in Martin v. Hadenfeldt (1930), 157 Wash. 563, 289 Pac. 533, the majority conclude that a jury could find that the disfavored plaintiff had been deceived into assuming that he had the right to proceed across the intersection. The majority say:
“. . . The jury could have concluded, from the evidence, that the plaintiff slowly entered the intersection and observed the defendants’ car a distance of 250 feet or more away; that the defendants’ car appeared to be traveling at a normal rate of speed; that, as a prudent driver, it was reasonable for the plaintiff to believe he could clear the intersection with a fair margin of safety; and that the defendant, Funston, accelerated his speed thereafter, causing the plaintiff to be deceived in his belief. This evidence was sufficient to raise a jury question on the issue of deception.”
On any analysis of the evidence all must agree that the cars were, in the words of the statute,1 “simultaneously approaching a given point within the intersection.” It is also certain that the plaintiff did not obey that statute “and give right of way to vehicles on his right.”
*386The court, and not the legislature, has added to the completely objective test of a violation of this statute, i.e., a collision in the intersection, an exception based on the almost purely subjective test of deception. This is popularly known as “rule 4 of the Hadenfeldt case” and is quoted in the majority opinion.
In Chavers v. Ohad (1962), 59 Wn. (2d) 646, 369 P. (2d) 831, we commented that in 31 years rule 4 had been discussed in more than 80 cases; and this case makes at least the third since the Chavers case a year ago. It is my view that, if the best that can be said about the circumstances is that they make a jury question on the issue of the deception of the disfavored driver, the statute ought to be applied as the legislature has written it and the favored driver given the benefit of his statutory right of way. The matter of who has the right to proceed through an intersection should not be a matter of opinion, and any doubt should be resolved against the disfavored driver. Only when reasonable minds cannot fail to reach the conclusion that the disfavored driver should have proceeded across the intersection should he be entitled to recover when he collides in the intersection with a favored driver. (I, of course, exclude the situations covered by the doctrine of last clear chance.)
However, the present case, in my opinion, does not even present a case for a jury under our judicially legislated exception to the statute. The testimony as to distances and speed cannot be reconciled with a conclusion by a reasonably prudent and cautious disfavored driver that he had a reasonable margin of safety.
In demonstrating this I shall use no estimates but those of the plaintiff and his witness and, in every instance, take the estimate most favorable to him.
The plaintiff approached the intersection at a speed of 12 to 15 miles per hour, saw the defendants’ car at least half a block away (250 feet), and “stepped on the gas and went on through.” I disregard, as being unfavorable to him, his testimony that his car “picked up pretty fast,” *387and that at the time of the impact he was going “probably fifteen or twenty miles” an hour.2 At the slowest speed he suggests (12 miles an hour), he would have traveled 44 feet, have crossed the 36-foot street and gotten all of his car across the traveled portion of the street and out of danger in two and one-half seconds. Let us now consider where the defendant must have been when the plaintiff made his observation and started across the intersection for their cars to collide in that intersection—which they certainly did. If the defendant was traveling 40 miles an hour (the highest speed supported by the evidence), he had to be less than 150 feet south of the intersection. If the jury is entitled to disregard the testimony and assume that maybe the defendant was traveling 50 miles an hour, he would have had to be less than 185 feet south of the intersection; and if we permit 50 per cent speculation over evidence and assume a speed of 60 miles an hour, he had to be less than 220 feet south of the intersection.
This puts the plaintiff in the split-second timing classification of cases such as Parks v. Farber (1962), 59 Wn. (2d) 656, 369 P. (2d) 836; Chavers v. Ohad (1962), 59 Wn. (2d) 646, 369 P. (2d) 831; Plenderlieth v. McGuire (1947), 27 Wn. (2d) 841, 180 P. (2d) 808; Billingsley v. Rovig-Temple Co. (1943), 16 Wn. (2d) 202, 133 P. (2d) 265; Emanuel v. Wise (1941), 11 Wn. (2d) 198, 118 P. (2d) 969.
If the fact that the disfavored plaintiff really thought he could make it across the intersection ahead of the favored driver is sufficient to take the issue of deception to the jury under rule (4), we have no right-of-way rule because every disfavored plaintiff really thinks he is going to make it.
The majority emphasize that there was deception in that the defendant-driver had increased his speed after the plaintiff saw him.
*388If the defendant had to accelerate to reach the speeds I have indicated after the plaintiff saw him, then, of necessity, he was considerably closer to the intersection than the distances I have indicated.
Judge Rosellini in his concurring opinion in Chavers v. Ohad, supra, said:
“The essence of the rule is deception. Excessive speed is observable and can only deceive the disfavored driver if the speed of the vehicle on his right is increased after he has observed it and while he is looking to the left. In all other cases the observer is mistaken, or misjudges the rate of speed at which the vehicle is moving. This misjudgment of speed and wrong estimate of the time in which it would take the vehicle to reach the intersection should not be equated with deception.” Id. at 654, 369 P. (2d) 835-836.
The jury could well have found that the nice old gentleman (the plaintiff) really thought he had a fair margin of safety and that the defendant was a sharp-turning, freewheeling, arrogant fellow who should be taught a lesson; but there is no combination of speed, acceleration and distance that can get the plaintiff out of the split-second-timing classification which equates contributory negligence. This is one of those hard cases that will make bad law.
Donworth and Weaver, JJ., and Dawson, J. Pro Tern, concur with Hill, J.
August 9, 1963. Petition for rehearing denied.
“Right of way on approaching intersections. Every operator of a vehicle on approaching public highway intersections shall look out for and give right of way to vehicles on his right, simultaneously approaching a given point within the intersection, and whether his vehicle first reaches and enters the intersection or not: Provided, [proviso not relevant in this case]” RCW 46.60.150.
The faster the plaintiff traveled the less time he would be in the intersection, and the faster the defendant would have had to travel the 250 feet from where the plaintiff saw him to the point of impact.