(dissenting).
I dissent. The order upsetting the jury verdict and the trial court’s judgment thereon can be justified only if they are outside the pale of reason. While I and other members of this court may or may not *240have reached the same result on the evidence, I do not see how it can be concluded with positive assurance that no reasonable minds acting fairly on the evidence could have done so.
The recent case of Johnson v. Maynard1 is so closely analogous to the instant case in its material facts that the legal issues presented are identical. We there reversed the trial court’s refusal to submit the case to the jury. The conclusion cannot be escaped that the principles therein announced are controlling here. There is nothing in the majority opinion which distinguishes that case from this one nor which suggests the wisdom of ignoring or overruling it. On the contrary, there are several considerations there discussed which are of significance here and impel me to believe that the trial court correctly ruled the case to be one for the jury.
There is no question about the soundness of the rule which is applicable under usual circumstances that one must avoid a danger which is plain to be seen or be held negligent either for not looking or for not heeding it. But that rule is only a specialized application of, and must be applied in an awareness of, the more fundamental tort rule: that one must observe that degree of care which an ordinary, reasonable and prudent person would observe under the circumstances. In applying that rule to the instant situation, it should be kept in mind that there is a considerable difference between perception by sight and by sound. What is perceived by sight is many multiples more than by hearing. If an automobile or other substantial obstacle passes in front of one, he can’t help seeing it. But if something prevents him from seeing it, it is quite possible that his attention may be otherwise engaged so that he does not hear or heed such a sound. The amount one hears, and the significance the sounds may have for him depend upon a number of factors, including where his attention is at the time. When attention is focused on other matters; such as the driving of one’s car; other traffic; and the semaphore light, sounds even such as a siren may fuse into other noises so that it may not arrest attention as quickly as might be desired. This is shown by the testimony of the other drivers, as related in the majority opinion. One testified that he heard the siren some 500 to 600 feet away; while the other said that he heard it only 60 to 80 feet away. Their cars were both stopped, so they were in a better situation to hear a siren than was the plaintiff.
It seems to me that the majority opinion does not accommodate itself to our obligation to view the evidence in the light most favorable to the plaintiff. It is reasonably *241susceptible of interpretation that: as plaintiff approached this intersection from the west, he was traveling at a moderate and lawful speed; was keeping a proper lookout ahead toward the intersection, as he should have been; that he saw that the cars facing south were stopped; that the car on the east side of the intersection facing west appeared to be parked; that he was watching the traffic control light and saw it turn green in his favor; so that from all of these facts he could take substantial assurance that it was safe for him to proceed through the intersection; that in that frame of mind it would take some definite and significant warning to arrest his mind therefrom and alert him to danger; that the police car was hidden from his view by the southbound cars so that his only chance to know of its presence was by hearing it. There is also the inference which reasonably could be drawn that the siren was diminished or silent for a brief period while the defendant removed his foot from the siren activator to his clutch in shifting gears. All of the above circumstances could be viewed, not only as giving the plaintiff confidence that he could safely proceed, but as supporting the truthfulness of his testimony that he heard no siren. Under the foregoing fact it seems hardly open to question that the jury could believe that the plaintiff, acting within the standard of reasonable care, could have relied upon the assurances of safety which were present, and that he did so and proceeded too far to avoid the collision before he became aware of the defendant’s presence.
The principles just discussed apply with equal cogency to the majority’s holding as a matter of law that the speed of the defendant police officer was not negligent. It is certainly to be conceded that the officer at times has a demanding and onerous duty which should not be burdened with unreasonable obstacles in its performance. However, the statute prescribes the measure of his privilege: that he is not obliged to observe the traffic rules nor the speed regulations applicable to others. But it also specifically provides that these exemptions “shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons.” 2 As a practical matter that is as far as the statute could go. There cannot be read into it any unrestricted license to drive through a busy intersection, around stopped cars which obstruct the view of oncoming motorists, and against a traffic light, at a speed which will hazard the safety of other motorists relying on the light. It is obvious that any reasonable person, even in an emergency vehicle, would be especially apprehensive of danger in driving through an intersection against the red light. If the evidence is *242such that reasonable minds might find that the defendant failed to observe the degree of caution which an ordinary prudent person would have done, the question of his conduct must be left to the jury. Judged by that standard, the verdict of the jury, reinforced by the judgment of the trial court, have found that he was negligent. What the police officer, or what we as members of this court might think about the matter is immaterial. If we give more than lip service to the often referred to advantaged position and prerogatives of the jury, that finding should be sustained.
The fundamental difficulty with reversing this judgment is that it runs contrary to our obligation to allow citizens the right of trial by jury; to have their disputes determined by a properly selected group of ordinary everyday citizens.3 If the verdict can be set aside whenever the court disagrees with it, that is no jury system at all, and the formality of using the jury is but a mockery upon justice. The right of trial by jury necessarily includes the right to claim the benefit of the verdict rendered 4 regardless of the asserted claims or authority of any officer, or even of the court itself. To serve this purpose this court has often declared its reluctance to infringe upon this right and avowed that a case should not be taken from the jury except where it is patent and clear that even upon the most favorable view that might be taken of the evidence, there could exist no basis for recovery under the law; and that whenever there is doubt, it should be resolved by leaving the issue to be determined by the jury.5 Accordingly, it is my opinion that the verdict and judgment should be sustained.
McDONOUGH, j., concurs in. the views expressed in the dissenting opinion of CROCKETT, J.. 9 Utah 2d 268, 342 P.2d 884.
. See. 41-6-14, U.C.A.1953.
. See statement in Stickle v. Union Pacific R. R. Co., 122 Utah 477, 251 P.2d 867, 871 and authorities therein cited.
. See Hales v. Peterson, 11 Utah 2d 411, 360 P.2d 822.
. See Stickle v. Union Pacific R. R. Co., footnote 3.