(dissenting) :
The majority seems troubled that fire engines may be rushing to emergencies without proper regard for the safety of other traffic. With all respect fo.r that concern, the fact is that no one responsible for the conduct of the fire engine is involved in this law suit.
The parties here are the estates of the deceased, passenger v. driver. The jury found the driver negligent, and the majority, not passing on alleged errors of the trial judge with respect to the negligence issue, assumes that Mrs. Hoover did negligently drive into the intersection. The sole question then is whether that negligence — inattentive driving— was a proximate cause of the collision that immediately ensued.
We are not concerned here with an atypical situation involving acts of negligence separated by substantial time, or one where the risk created by the actor’s conduct is substantially different or less than the harm that occurs as a consequence of some other actor’s concurrent or subsequent conduct. This is a routine collision case, and the harm that resulted from Mrs. Hoover’s inattentiveness, clearly a but-for cause of the accident, is entirely foreseeable. As concurrent tortfeasors are jointly and severally liable, I think any error in the District Judge’s treatment of the issue of proximate cause was harmless.
I think it appropriate also to note that while the statements of the District Judge concerning the duties of emergency vehicles were not beyond reproach they were not, strictly speaking, incorrect. His statement that the fire engine “is not bound to stop or even slow down at stop signs,” is not contrary to the regulation, which only requires slowing down “as may be necessary for safe operation.” The Judge expressly noted that the fire engine operator has “no license to drive carelessly or recklessly.” This was an open intersection, and the record establishes that other traffic pulled to the curb. All drivers have to assume some level of attentiveness on the part of others using the roads. Defense counsel did not point out to the District Judge that he might be misleading the jury. Rather he insisted that the regulation requires fire trucks to slow down. That it clearly does not do.
In any event, defendant’s objections were not to the trial court’s handling of the proximate cause issue. The defense theory of the accident was that Mrs. *359Hoover was not negligent because the fire truck was going too fast for her to have time to react. On this theory, pressed hard by defense counsel, it is not decisive whether or not the fire truck was negligent. What controls are the hard facts of time, speed and distance. If a reasonable driver could and would have stopped, the passenger must recover.
I respectfully dissent.