dissenting:
I agree that the giving of plaintiff’s instruction No. 1 constituted reversible error, for the reasons stated in the opinion of the Court, but I cannot agree that defendants’ peremptory instruction should have been given. Damron, a deputy sheriff and an experienced driver, who testified for plaintiff and who was the only witness who observed both cars immediately before the collision, stated that the taxi approached the intersection at a speed “between 40 and 60 miles” per hour; that the driver did not put on the brakes; that the taxi was near the first intersection west of where the collision occurred at the time Ferrari entered Virginia Street and that the impact from the taxi overturned the car being driven by Ferrari. Damron also testified that Ferrari, upon reaching the intersection, slowed down “real slow and then started out. I don’t know whether in second gear or low gear but it changed gears. * * and that the lights on both cars were burning. The defendant Hissom, driver of the taxi, admits that he was driving “from 20 to 25 miles per hour”, that being five to ten miles per hour above the speed limit at the point of the accident. The jurors viewed the scene of the collision and were informed as to distances. They also observed the witnesses and could judge as to their veracity.
*134There was no evidence as to whether Ferrari looked in the direction from which the taxi was approaching before entering the intersection but, from the fact that he slowed down and changed gears, and from the fact that it was his duty to look, a jury would be warranted in finding that he did look.
From this evidence the jury could have found, and apparently did find, that Ferrari, before entering the intersection, slowed down “real slow”, changed gears, looked west on Virginia Street, saw the taxi approaching the intersection from some distance away; that Ferrari then entered the intersection in an attempt to cross, believing that he had sufficient time to cross the intersection; that the taxi was being driven toward the intersection at a speed of forty to sixty miles per hour and did not slow down before entering the intersection.
Under these circumstances Ferrari, viewing the taxi some distance away, had the right to assume that the taxi would slow down and enter the intersection at a lawful rate of speed. Primrock v. Goldenberg, 161 Minn. 160, 200 N. W. 920, 37 A. L. R. 484. Had it done so Ferrari could have cleared the intersection before the taxi reached it. At least the jury should be permitted to determine whether, under these circumstances, the contributory negligence of Ferrari was the proximate cause of his death. To give a, peremptory instruction would, in my opinion, ignore this theory of the case and all of the evidence above detailed and would be an invasion of the province of the jury. Before such an instruction should be given all of the evidence of the defendants should be disregarded and every reasonable inference given to the evidence of the plaintiff.
“ ‘Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence.’ Nichols v. Raleigh*135Wyoming Coal Co., 112 W. Va. 85, 163 S. E. 767.” Point 2, Syllabus, Hambrick, Admr. v. Spalding, 116 W. Va. 235, 179 S. E. 807.
In my opinion the rule of law governing this case is stated in Points 2 and 3 of the syllabus in the case of Burdette v. Henson, 96 W. Va. 31, 122 S. E. 356, 37 A. L. R. 489, as follows:
“2. Where the statute gives right of way to a driver approaching an intersecting highway from the right over vehicles approaching from the left, he is not thereby relieved of the duty to use reasonable care to avoid collision with such vehicles approaching from the left.”
“3. And the driver approaching from the left is not required to stop and give way to a vehicle in the distance coming up on his right, where he has no reason to anticipate that he can not cross the intersection in safety, but may assume that the other will exercise due care in approaching and crossing the intersection.”
“The fact that a vehicle may have a right of way over a public road or street, does not relieve the operator of such vehicle from the duty to operate the same with reasonable care.” Point 1, Syllabus, Vaughan v. Oates, 128 W. Va. 554, 37 S. E. 2d 479.
For the reasons above stated I respectfully dissent.