Werner v. Patriot General Insurance

LEMMON, Judge

(concurring).

Werner was negligent in moving his bicycle in front of the momentarily stopped automobile from a direction in which traffic was not reasonably to be expected, without ascertaining that the driver was aware of his presence.

Sheppard was negligent in moving forward from the stopped position into the intersection when the bicycle was directly ahead of him, apparently without first ascertaining that his path was clear, a duty required of a yielding motorist.

A second or two before the collision, either could have avoided the accident, Wer-ner by stopping and Sheppard by remaining stopped, and neither had yet acted negligently. When each acted at the same instant in disregard of the other, neither had sufficient time to discover the peril of the other resulting from his own negligence. Thus, neither had an opportunity for the last clear chance to avoid the accident.