(dissenting).
I am itnable to agree to the affirmance of the judgment entered in the court below. The defendant was drunk at the time he ran over and killed a little boy aged three years ten months. The chief of police of the town of Layton, Utah, who investigated the matter a few minutes after it occurred, testified that the defendant was drunk and did not seem to understand what he was talking to him about; that the defendant was quite vague and seemed to have only one thing in mind: that if he could just go home, the entire problem would be solved. The defendant testified that he was an alcoholic and at the time of the accident he would be classed as drunk. Two hours after he ran over the child, the alcoholic content of his blood was 0.28 per cent by weight. He testified that he drank after the accident, but no one saw him do it, and the plaintiff, a highway patrolman, and the arresting officer and others were with him constantly from the time he stopped his automobile until the blood sample was taken. The chief of police of Lay-ton City testified that the defendant told *373him that he had not had anything to drink after the accident.
The highway at the place in question was zoned for a speed of 40 miles per hour. Sections 41 — 6—46 and 41 — 6—48, ILC. A. 1953, provide that a posted speed is presumed lawful where there is no special hazard existing, but that speed shall always be controlled so as to avoid colliding with any person, etc., on or entering the highway. Here there was a special hazard: an overturned car on the west side of the highway, a highway patrol car with flashing red lights, six or eight cars parked on the east side of the highway, and several cars on the west side. There were a number of people around the overturned vehicle. In addition to these special hazards, which should alert one to danger, the defendant was so drunk that he himself was not only a hazard but a menace as well.
The defendant said he had been driving 40 miles per hour but when he saw the overturned car and the parked automobiles on both sides of the highway, he took his foot off of the accelerator but did not know how much he slowed down. His car laid down brake marks of 80 feet for the front tires and 70 feet for the rear ones. The expert witness testified that when the brakes were applied, the car was going 38 or 39 miles per hour.
The defendant testified that he first saw the child when it was five feet in front of. his right headlight. The fact is that before impact he laid down 40 feet plus the length of a car of brake marks. The reaction time of a drunk would be more than that of a normal person, so the defendant must have seen the child for an additional distance of 58 feet for each second of his reaction time. The child was 251/2 feet into the road from his father’s car when he was hit, and there was nothing to prevent the defendant from seeing him while he traveled that distance.
In my opinion the defendant was negligent as a matter of law for the reasons set out above.
While the record before us does not show that plaintiff asked for a directed verdict, he did raise the question by a motion for a new trial.
One wonders what would cause a jury to ■find as it did under the facts of this case. I think the answer is to be found in the instructions given and the rulings made by the court.
The court gave an instruction as follows:
A person in crossing the highway in the vicinity of this accident was required by law to yield the right-of-way to all vehicles on the roadway so near as to constitute an immediate hazard. You may consider this only in connection with the conduct of the defendant. and the plaintiff.. . . .
*374The first part of this instruction could only apply to the child; and while the last sentence says it can be considered only in connection with the conduct of the defendant and the plaintiff, it is confusing and meaningless to try to apply it to a nonexistent fact situation. The jury may not have understood the legal term “plaintiff.” Had the instruction said that the first sentence applied only to the conduct of Mr. Wagner, the jury would have been in a quandary as to what it did mean.
After instructing the jury on all possible defenses to negligence, the court then proceeded to give that old standby instruction loved by defendants and criticized by most decisions of recent times, to wit: the unavoidable accident. For a discussion of this instruction, see my dissent in the case of Woodhouse v. Johnson, 20 Utah 2d 210, 216, 436 P.2d 442, 446 (1968).
The court further instructed that a person who is exercising due care has a right to assume that others will also perform their duties under the law. This instruction clearly told the jury that the infant child was violating his duty under the law and that the defendant was relieved from responsibility because of it. The child owed no duty to the defendant, and he violated no law. He was too young to be charged with any duty to the defendant or to anybody else.
The court also told the jury that it was the duty of a person to drive a car on the highways while he was not under the influence of intoxicating liquor. This is not a true statement of the law. One does not have a duty to drive at all. . What should have been said was that no person has a right to drive a car upon the highways of this state while he is under the influence of intoxicating liquor.
He further told the jury that if Mr. Wagner did not do what a prudent man would have done in caring for and supervising his son, he was negligent and could not recover. The number of persons killed and maimed daily by drunk drivers on the highways of this nation has reached an appalling figure. It is my judgment that it would be a salutary rule if we withheld from a motorist the defense of contributory negligence when he is involved in a collision while driving under the influence of intoxicating liquor. The defense of contributory negligence was originally devised by the courts to punish a plaintiff for his own misconduct. See Lord Halsbury, L. C., in Wakelin v. London & S. W. R. Co., 12 A.C. 41, (1886). It is nothing more than a rule of court, and since it was instituted by the courts, it can be modified by them. In fact, the courts have everywhere held that contributory negligence was not a defense to wilful or wanton misconduct. See Prosser, The Law of Torts, Third Edition (Hornbook Series), Section 64, page 436. To me it seems that a drunk person who undertakes to drive an automo*375bile upon the highways is guilty of extremely wanton misconduct and should be held responsible for any damages caused by his negligence.
The court allowed an expert witness to assume the boy ran the 25^4 feet from his father’s car and then state how long it would take a child to run that distance. Then using that time limit the witness calculated the distance from the point of impact the defendant would have been when the child came from behind his father’s vehicle. He then testified that a sober man would not have been able to stop before impact. There was no evidence that the child ran or that his speed of racing was that assumed by the witness. The objections of plaintiff to this testimony were overruled by the court. This testimony would tend to plant in the mind of the jurors the fact that the child “darted out” when no one except the defendant saw the child, and he only saw it when it was five feet away. There was no evidence that it ran anywhere. The failure to sustain the objection was error.
It cannot be told from the record whether the jury thought the plaintiff was negligent in leaving his son strapped in the front seat while he ran across the road to see if he could be of assistance or whether it thought the defendant was not negligent. To me it seems that a new trial should be given, and I would so order it with costs awarded to the appellant.