(dissenting). The trial jury in the instant case found that the injuries for which the plaintiff seeks recovery were proximately caused by the defendant Bourestom in driving his automobile on a highway too close behind a preceding car. The opinion of the court rests its decision on the proposition that there was no causal connection between the defendant’s so driving his car and the infliction of plaintiff’s injuries. To this proposition I cannot assent.
The statement of facts preceding the opinion recites that : “For a distance of about a mile Bourestom followed another car, waiting for a chance to pass.” The driver of the car ahead turned suddenly to the left to avoid a car directly in front of it headed toward it. The defendant had not seen this car because the car ahead obstructed his view of it. Bourestom testified that the car ahead was traveling fifty or sixty miles per hour, and that when it turned to the left as above stated he was a “little more than fifteen or twenty feet behind” it, — “my best judgment would be between twenty and thirty feet.” As the car ahead turned to the left the defendant smashed into the car in front of it. Fie had no time to apply brakes or turn aside to avoid hitting this car, which was apparently just starting up and moving slowly.
This to- me spells causal negligence as found by the jury. If this is not causal negligence I fail to see how following too' closely ever can constitute such negligence, and sec. 85.32 (1), Stats., contemplates that so following may be such negligence. The statute cited reads :
“The operator of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having *675due regard for the speed of such vehicle and the traffic upon and the condition of the highway.”
I find no Oklahoma statute expressly so providing, but the statute cited only expresses a common-law rule of ordinary care in driving, which is applicable in Oklahoma by sec. 10221-2, Anno. Stats. A less dangerous situation of following than the instant one because of a speed of only ten miles per hour was involved in Meyer v. Neidhoefer & Co. 213 Wis. 389, 251 N. W. 237, wherein it was held that whether the following there involved was too close and causal was a jury question. In that case a gravel truck was traveling south closely following a malt truck. A streetcar was coming from the north. The malt truck shut off the view of the streetcar from the driver of the gravel truck. A delivery truck came from the west on an intersecting street to turn south. Double-parked cars prevented the driver from turning directly south on his right side of the street and he turned left across the streetcar tracks directly ahead of the malt truck. The driver of the malt truck turned left to avoid the delivery truck. Both these trucks barely missed the streetcar. As the malt truck turned left, the gravel truck was too close to- it to- avoid hitting the malt truck by stopping, and was obliged to turn left to avoid hitting it, and in doing so the gravel truck collided with the streetcar and injured a passenger therein. The drivers of the streetcar and the malt truck were concededly free from negligence. The driver of the delivery truck was found by the jury to- have been causally negligent. The trial court had directed judgment against the owner of the gravel truck on the ground that the driver was causally negligent for following the malt truck too closely. This court, Mr. Justice FaiRchild writing the opinion, reversed the case for a new trial on the ground that the question of the causal negligence of the driver of the gravel truck was for the jury. The negligence of the driver of the delivery truck in invading his left side of the street *676caused the injuries complained of in that case, but his negligent invasion was held not to avoid the result of negligence of the driver of the gravel truck in following the malt truck too closely if he was negligent. No' more should the negligent invasion of the defendant’s side of the road by the driver of the car with which defendant collided relieve the defendant from his negligence in too closely following the preceding car.
The purpose of holding a trailing driver to a proper distance is to- keep him in position to stop or so control his car as tO' prevent him from doing injury because of the action of the car ahead, whatever be the cause of that action, and regardless of whether that action results from something-being in the road ahead of the preceding car as a result of negligence of a third person or independent of negligence of anybody.
The opinion attempts to support its view that following too' closely was hot causative by citing and quoting from the opinion of this court in Byerly v. Thorpe, 221 Wis. 28, 265 N. W. 76. That case to my mind is not in point for two reasons — the driver of the trailing car was in the act of passing the car ahead and the injuries involved were manifestly caused by the sudden deflation of a tire on the passing car, and the injuries followed entirely independent of the action of the preceding car.
Assuming the opinion of the court to be correct in all other respects, if there was causal connection between the defendant’s following the preceding car too closely, as in my opinion the evidence establishes and the jury found, the judgment of the circuit court should be affirmed.
A motion for a rehearing was denied, with $25 costs, on Tune 21, 1939.