dissenting.
I respectfully dissent from the opinion adopted, reversing and remanding the case.
This case is somewhat close and I desire to make clear certain points in the evidence.
This action grew out of a head-on collision of two automobiles, both of which were damaged. The jury returned a verdict for plaintiff for $1,183, and defendant appealed.
. The accident occurred about as follows: The plaintiff, Cyrus C. Roby, with his wife, was driving west on Highway No. 20, a paved road, 20 feet wide, in his Dodge coupé, on February 4, 1946, at a little after eight o’clock in the morning. His speed was 28 to 30 miles an hour. At the time it was very foggy, and some cars were using lights, others were not. The road was slippery in places from being wet, and was icy in other places.
The defendant, Hobart M. Auker, a farmer, 50 years *742of age, was driving east to Sioux City in his Ford V-8, and testified that there was at that time considerable traffic on the road, both of cars and trucks. Some had their lights on, as he did. He followed Howard Carter’s car for about one-fourth of a mile. As it was going only 25 to 30 miles an hour he decided to pass it, and stepped on his accelerator; “I gave it all it would take to pick up my speed to pass him.” He had looked to see if the road was clear ahead. The road was level. He could not see anyone coming, and was alongside the Carter car when he first saw the plaintiff about 300 feet ahead of him. Defendant put on his brakes as hard as he dared to, and tried to stop, but his car skidded first to the right, then to the left, and was headed straight east when the cars collided, both being on the north side of the center line of the road. When it was over, the plaintiff’s car was over in the fence to the northwest, 40 feet from the place of the accident, with his rear bumper in the fence. Defendant said his car slid over to the south side and stayed, with the rear wheels on the pavement, about 20 feet from the place of the accident.
Defendant said the shoulder, or apron, was about six and a half feet wide, with a very gentle dip to the ditch, which was about three feet deep.
The plaintiff testified that he first saw defendant’s car when it whipped out from behind the Carter car at a terrific rate of speed, 400 or 500 feet away. “Now when Auker came out behind this car how was his car performing? A It looked to me like he was headed right straight north and then he came back and when he came back the second time he hit me. Q In other words it indicated to you that his car was out of control or partially out of control, is that it? A That’s right. Q And upon seeing this Carter (Auker) car in this position, what did you do? A Well, I told the Mrs., I says look at that crazy devil come, hang on, I am taking the ditch, and I took my foot off the accelerator and *743threw out the clutch. I didn’t want my power to hit his power.”
Plaintiff testified that he had gotten so his right wheels were four feet four inches off the pavement at the time of the collision, and his coupé was thrown to the north side, with the back bumper in the wire fence over- across the ditch, and defendant’s car was off the road on the south side. The plaintiff’s car had its left front wheel knocked off, the bumper off, the hood mashed, left front door mashed, the running board on left side entirely off, and the frame and front axle were sprung. Plaintiff’s car was worth $1,200 before the accident. It cost $410 to repair it, and took two months to get repairs. After it was repaired it was only worth $600, and he had not yet gotten the new front door or running board. He testified that his business at the- time was buying stock with which to go on a farm, and it cost $5 a day to hire a car to make these trips. Dr. Larsen removed eight pieces of glass from plaintiff’s eye, and later took out another piece. Plaintiff’s back bothered him all summer. He testified that defendant came to see him afterwards and said it was all his fault, that he was to blame for the accident, and “it was lucky we wasn’t all killed.” The defendant denied making these statements.
Sheriff Goodsell testified that he got out to the place of the accident about 9 o’clock that morning. He saw the fresh tracks where the plaintiff’s car had been driven out on the shoulder or just kept skidding. The sheriff testified that defendant Auker answered his questions, and told him this: “He said he was trying to pass a fellow and he was in a hurry and had some stock in the stockyards and wanted to get down at the stockyards by the time it was sold.” However, the defendant denied making this statement to the sheriff.
There was a stipulation as to the testimony that- Dr. A. A. Larsen would give if he were called and sworn as a witness; that he would testify to removing glass from *744plaintiff’s eye, that plaintiff’s left shoulder and left knee were bruised, “and, further, that Mrs. Roby had bruises on both arms, hematoma of the left arm and of the left shoulder, and large bruises on the right shoulder, and a puncture wound of the right leg one-half inch deep; * * * >> .
At the close of plaintiff’s evidence defendant moved for a directed verdict for the reason that plaintiff failed to prove the allegations of his petition; that by plaintiff’s admissions and the testimony of his own witnesses it was shown that he was guilty of more than slight negligence in that he did not exercise care by applying his brakes, in disengaging his clutch, which was negligence, and that the speed of plaintiff’s car was not reduced at the time of the accident; and that the contributory negligence of plaintiff bars him from recovery. This motion was overruled by the court.
The defendant testified that he had to pay $172.75 for the repairs on his car, which included the tow-in charge of $10, and it was stipulated that that amount was the fair and reasonable value of the repairs. The defendant called no other witness, and rested after his own testimony had been given, which included introduction of four pictures he had taken some days after the accident.
One section of our statute is in part as follows: “No vehicle shall be driven to. the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the right-hand side of the roadway before coming within one hundred feet of any vehicle approaching from the opposite direction.” § 39-7,110, R. S. 1943.
*745The defendant admitted that he attempted to pass an automobile going in the same direction. The left side of the road was not free of oncoming cars, and when defendant saw that plaintiff’s car was dangerously close he put his brakes on hard, causing his car to skid from side to side and go out of control.
In his counterclaim the defendant alleged, that plaintiff “carelessly, negmigently, recklessly and unlawfully, and wholly without regard to the safety of the public in the use of said highway, ran his said car, with great force and violence, upon and against defendant’s car, damaging and wrecking- the same, * *
These allegations the defendant’s evidence entirely failed to support, and therefore, under this state of the record, it was not error for the trial court to give the jury instruction No. 5, in which the jury were told that the defendant’s counterclaim was withdrawn from their consideration, “and in arriving at your verdict you shall not take into account any 'monetary value of repairs to defendant’s car or the loss of the use thereof.”
The defendant next charged the court with error in the giving of instruction No. 12 on sudden emergency, which read as follows: “Where the operator of a motor vehicle by a sudden emergency not due to his own negligence is placed in a position of imminent danger, and has insufficient time to determine with certainty the best course to pursue, he is not held to the same accuracy of judgment as is required under ordinary circumstances; and if he pursues a course of action to avoid an accident, such as a person of ordinary prudence placed in a like position might choose, he is not guilty of negligence even though he did not adopt the wisest choice. So, if you find in this case that plaintiff was suddenly confronted with an emergency not due to his own negligence you will then consider the foregoing rule and determine whether under the conditions plaintiff used ordinary care.”
The defendant objects to this instruction on the ground *746that it was a statement of an abstract proposition of law, and not within the issues presented by the pleadings. Defendant charges that- the giving of this instruction was highly prejudicial to the defendant, and that it suggested to the jury that they could excuse the plaintiff for his contributory negligence.
The opinion of the majority sustains the defendant in his contention and denies that there was a sudden emergency. Let us examine some of the evidence as to whether there was an emergency.
The plaintiff testified as follows: “Q What would be the effect of one applying the brakes suddenly and severely? A He would lose control of his car on the highway. Q From the appearance of the course that Mr. Auker’s car took after he came out into your traffic lane, would you say he applied his brakes severely to that automobile? A That is the way it looked, slammed on his brakes. Q After that did he apparently have any control of the automobile? A No, I don’t think he had any control at all.”
Howard Carter, whose car the defendant attempted to go around, testified: “Q What was the condition of the pavement itself as regards being slippery or dry? A Icy. Q And was this icy condition, was that plainly visible to anyone driving that highway? A Yes. Q Were you driving slower than your usual rate of speed? A Yes. Q And for what reason were you driving slower?' A Fog and ice.”
Frank Kukuk testified on direct examination that the road was “real slippery” and had “A little ice on it.”
The defendant differed with these three men, and testified: “Q You heard the testimony of Mr. Kukuk and Mr. Carter that the pavement was icy, didn’t you? A It was later on, yes. Q At the time of the accident they testified to. A No, it wasn’t. I wouldn’t say it was icy at all, it was wet: Q It was slippery enough so that your car went into a skid when you applied your brakes? A That’s right.”
*747Now, the evidence is that the defendant was driving very fast a little over a mile back when he passed Frank Kukuk, who testified: “Q At what rate of speed were you driving that morning? A Well, I was going awful close to fifty. * * * Q After the defendant’s car passed you as you have testified, did you continue to drive at about the same rate of speed you had been driving? A Yes, I did. Q Did the defendant’s car remain within the range of your vision? A No, he got away from me. * * * Q After you had driven on up the road you came to the scene of the accident? A Yes, sir. Q About how far was it from the point where the defendant had passed you? A I would say it was over a mile. Q A mile or so east of there? A Yes.”
The facts indicate that when defendant went around the Carter car he saw plaintiff coming towards him. Defendant testified: “Q And you slammed them on as hard as you dared to, is that what you say? A Yes. Q You had thrown your car into a skid, didn’t you? A Yes, sir. Q Which way did you skid? A It skidded' to the right first and then to the left and I was going straight east when we collided. Q And you weren’t able to control your car after you slammed on the brakes at all? A Not for a minute.”
This court has frequently held that a motorist who drives his automobile so fast on a highway at night, (or on a foggy morning when using his lights, as defendant was in the case at bar,) that he cannot stop in time to avoid a collision with an object within an area lighted by his headlights is negligent as a matter of law. See Redwelski v. Omaha & C. B. Street Ry. Co., 137 Neb. 681, 290 N. W. 904; Roth v. Blomquist, 117 Neb. 444, 220 N. W. 572; Cotten v. Stolley, 124 Neb. 855, 248 N. W. 384; Most v. Cedar County, 126 Neb. 54, 252 N. W. 465; Hendren v. Hill, 131 Neb. 163, 267 N. W. 340; Fischer v. Megan, 138 Neb. 420, 293 N. W. 287.
Under this state of facts, it is my opinion that the plaintiff was confronted with a sudden emergency, and *748the instruction on that subject was correctly given.
“The emergency rule exculpates onet when he acts upon his judgment in an emergency of imminent peril not created by his own fault.” Hanson v. Matas, 212 Wis. 275, 249 N. W. 505, 93 A. L. R. 546.
The necessity of acting suddenly, without opportunity for deliberation, is a circumstance to be taken into consideration in determining what is ordinary care in that situation. In the case at bar, the court also gave the usual instruction on contributory negligence.
In the majority opinion it is said that the court should have instructed the jury on the last clear chance doctrine, although the defendant did not submit any instructions and did not assign its omission as one of the errors of the court.
Before the doctrine of last 'clear chance can apply, the party must have had a chance to avoid the collision, for the doctrine presupposes time for action. See 5 Am. Jur., Automobiles, § 490, p. 778; Diehm v. Dargaczewski, 135 Neb. 251, 280 N. W. 898.
After defendant had dashed out to pass the Carter car, and when his car went out of defendant’s control, what time for action did the plaintiff have to avoid a collision? I submit that under the evidence he had none. There was no valid reason that I can see for giving an instruction on last clear chance in this case.
“It may be admitted that under the Constitution the right of trial by jury is guaranteed to all citizens. This right cannot be violated by a legislative act, or by judgment of the court, yet not all cases must be submitted to a jury. It is just as erroneous to submit a case to a jury, and permit the jury to speculate with the rights of a litigant, when no question for the jury is involved, as it is to deny to a citizen his trial by jury when he has that right. J. C. Penney Co. v. Robison, 128 Ohio St. 626, 193 N. E. 401, 100 A. L. R. 705.” Smith v. Epstein Realty Co., 133 Neb. 842, 277 N. W. 427.
The verdict of the jury and the judgment thereon' in *749this case are now sent back for a new júry trial, with all of the expense and delay that this incurs, and the court in a retrial is to submit the defendant’s claim of $172.75 for car repairs to a jury, when one jury has already decided this case for the plaintiff. In my own humble opinion, after holding district court in 31 counties in Nebraska, if a new jury should decide that the defendant’s cross-petition claim was valid the trial judge would have to set it aside, as there would be no evidence to support negligence on the part of the plaintiff.
In my opinion, the instructions in this case were much more favorable to the defendant than he was entitled to, the verdict was the only one that could have been reached, and the judgment entered thereon should have been affirmed.