dissenting:
The driver of the automobile had no reason to anticipate that the plaintiff would attempt to cross the street between intersections in violation of the statutory regulations and was, therefore, under no duty to be on the lookout for Mrs. Curtis at the place of the accident. The *559evidence shows that when Nelms actually saw Mrs. Curtis, he did all he could to avoid the injury in the emergency. He testified that he first saw the plaintiff when she was about in the center of the street and thought she would certainly stop but when he saw that she was going to continue across the street, he applied his brakes and as soon as he passed the automobiles which were parked along the curb on the north side of the street, he swerved to the right to keep from hitting her. It is testified by plaintiff’s witnesses that the marks in the street showed that Nelms applied his brakes and dragged his wheels for a distance of sixty or seventy-five feet before he swerved the car to the right and ran up on the sidewalk in an effort to avoid striking the plaintiff.
I think the case is controlled by Green v. Ruffin, 141 Va. 628, 125 S. E. 742, 127 S. E. 486, and Frazier v. Stout, 165 Va. 68, 181 S. E. 377, in which the facts are, in the main, quite similar to those in the case at bar, and the same principles of law seem applicable. Plaintiff in the instant case says she saw this automobile rapidly approaching when she first reached the center of the street, but continued on across because she thought she could reach the sidewalk safely. If she had stopped when she saw the car coming it would have passed between her and the curb and there would have been no accident. When, therefore, she stepped in the path of this speeding automobile, she was guilty of negligence which proximately and effectively contributed to the injury, and bars recovery. While it is also true the injury would not have occurred if Nelms had kept a straight course instead of turning to the right, this under the circumstances constitutes error of judgment on his part, and not negligence. It is well settled that one suddenly confronted by an emergency created by the negligence of another, and compelled to act instantly, is not guilty of negligence if he makes such choice as an ordinarily prudent person might have made, even though the choice might not have *560been the wisest one. Jones v. Hanbury, 158 Va. 842, 164 S. E. 545. But assuming Nelms was negligent the case, as it seems to me, is simply one of concurrent negligence in which there can be no recovery. Neither can the doctrine of the last clear chance apply, for the obvious reason, among others, that Mrs. Curtis had the same, or a better, opportunity to save herself as the defendant had to protect her.
I think the judgment of the lower court should be reversed.