(dissenting).
I think that there has been a miscarriage of justice in this case, due to the erroneous submission to the jury of the issue of unavoidable accident. With over a million cars on the highways passing each other safely every day, to say that the injuries to appellants resulted from an unavoidable accident is to belie the facts of life and to encourage carelessness in driving automobiles.
The erroneous instruction was duly excepted to before the jury retired; and the right to reserve this exception, in my opinion, was not waived.