(dissenting).
I feel constrained to dissent in this case upon two grounds. First, because I believe it constituted reversible error for the court to give an instruction on an emergency for the reason that defendant Quandt created the emergency by his own negligence. He had no right to rely upon a signal to cross the westbound traffic lanes given him by the driver of the car about to turn south on First Street. Consequently, it was his duty under such circumstances to know two things with reason*347-able certainty: first, that he could proceed to the north across westbound traffic on Van Burén Street without danger of collision with a westbound car, and second, that the crosswalk for pedestrians on the north side of Van Burén could be safely •crossed without injury to pedestrians lawfully in the use thereof. It is very obvious from what happened that he could •do neither.
It is clear to me that defendant Quandt was guilty of negligence in driving his car into the middle lane of westbound traffic at the time he did and that it was his own negligence that created the emergency upon which the court’s instruction rests. This being true he did not have the legal right to rely upon an emergency to relieve him of liability to plaintiff. Western Truck Lines, Ltd. v. Berry, 52 Ariz. 38, 78 P.2d 997. It was therefore reversible error to give an instruction based on an emergency.
Secondly, it is my view that it was error to give an instruction on contributory negligence in this case. It is conceded that the plaintiff had the right of way at the time and place over the vehicle driven by defendant. Even if it were conceded that plaintiff was negligent in not keeping a proper lookout for vehicles coming from the west on Van Burén Street which might want to turn north on First Street at that intersection, the principle of law certainly cannot be questioned that unless his negligence was shown by the evidence to be a proximate cause of his injury, the question of contributory negligence should not have been submitted to the jury.
The evidence is not in dispute as to either plaintiff’s or defendant Quandt’s actions at the time and place the accident and injury occurred. Therefore, the court had the right and it was its duty to determine as a matter of law whether plaintiff’s negligence, if any, was or was not a contributing proximate cause of his injury. If it was a proximate cause, it was the duty of the court to instruct on contributory negligence. If it did not proximately contribute to his injury, it was reversible error to instruct on it. Neither defendant Quandt nor his wife saw plaintiff until their truck was within three feet of him, nor did plaintiff see defendants’ car until it was right on him. Defendant Quandt testified that he “stepped on it” when he had driven into the second lane north of the center line of Van Burén and saw a westbound car come “sailing” around the car which had given him the signal to proceed north. Mrs. Quandt testified that when she first saw plaintiff he was within approximately three feet of the front of their car and that she then told her husband to stop and he then put on the brakes.
According to measurements taken by an officer based upon physical evidence, plaintiff was struck by the vehicle seventeen feet west of the east curb of First Street and seven and one half feet north of the *348north curb of Van Burén Street. Defendants’ car apparently was stopped across the lane immediately north of the center line of Van Burén Street. The two other lanes were each eleven feet wide. This placed defendants’ car approximately twenty-nine and one half feet from where the car “bumped” plaintiff. Therefore, if plaintiff had been watching defendants’ car from the time he left the east curb until the time of his injury, plaintiff could not possibly have avoided being struck by defendant Quandt who had “stepped on it” when he saw the car come “sailing” around the westbound car which was waiting in the intersection for an opportunity to go south on First Street. Defendant Quandt didn’t see plaintiff until his car struck plaintiff, and he was not told by his wife to “stop” until his car was approximately three feet from plaintiff. I contend, therefore, as a matter of law from the undisputed evidence that if plaintiff was negligent, his negligence did not in anywise contribute to his injury. Plaintiff had the right to presume that defendants would not suddenly speed from Van Burén north across the pedestrian lane lawfully being used by him and .where he had the right of way over defendants. Of course, I would make no such contention if the evidence in this case relating to contributory negligence was in conflict.
The judgment, in my opinion, should be reversed for the reasons above stated.