(concurring- in the result).
I concur in the result and in that part of the reasoning-supporting the result which I set out as follows: that the plaintiff had the right of way; that at least for the purposes of determining the defendant’s right to dismissal the defendant must be treated as having been negligent in traversing the approach to the intersection at an execessive speed; that it was clearly a jury question whether under all the circumstances the plaintiff was guilty of contributory negligence; and that there is evidence from which a jury could find that he was not so guilty. This much supports the decision for reversal and I rest my concurrence on it. By this, I do not wish it to be implied that I do not agree with the statement made by Mr. Justice Crockett in the rationale by which he reaches the result. The opinion shows evidence of a commendable attempt to find common principles governing our intersection decisions. In many and perhaps most of those statements I can agree. In others, I cannot. But I think it a work of supererogation for me to discuss each one separately and cast myself in the role of a critic as to them. I am inclined to the view that the writer of the opinion in his attempt to bring all the intersection cases under common principles was on solid ground so long as he did not go beyond the broad principle that each driver must exercise due care under all the circumstances, surrounding his traversal of the intersection; as to more refined principles, intersection cases will vary with the circumstances. I cannot agree that Hickok v. Skinner, 113 Utah 1, 190 P. 2d 514, may be justified on the theory that the driver who had the right of way in that case was negligent as a matter of law because he
“observed, or in the exercise of due care should have observed, the manner in which the other driver was approaching the intersection and clearly could by ordinary reasonable care have avoided the collision.” (Emphasis added.)
This statement begs the question. The very thing complained about in that case is that the driver who unquestion*499ably had the right of way, was held to be negligent in failing to reappraise the situation. He was not given the benefit of the preference the law accorded him nor of the presumption which the law should indulg-e him, viz. that the non-preferred driver would also slow down in deference to his right. It appears to me that those elements should have gone to the jury to determine if under all the circumstances the driver who was in law held guilty of contributory negligence, was in fact so guilty.
I do not think in the Hickok case it could be said as a matter of law that under the circumstances Hickok was negligent in proceeding under his right of way and that he should have been or was alerted to the fact that the other party would not surrender it to him.
In that case the facts are not such as to justify the statement that
“the negligence, or manner of driving, of the other driver was such that the driver appraising the situation was alerted to it, or by using due care would have been so alerted in time so that by the exercise of ordinary precaution he could have avoided the collision.”
Whether that was so should have been left to the jury. For the lower court or this court to take upon itself the function of saying that the favored driver was negligent unless no reasonable mind could say otherwise, simply reintroduces the element of requiring the preferred driver to drive so as to avoid the negligence of the disfavored driver which both Mr. Justice Crockett and I have given warnings against. Or it introduces a pseudo last clear chance doctrine. .
I appreciate the brace effort of Mr. Justice Crockett in trying to explain the Hickok case and in attempting to bring it under a common category but it requires á perversion of the facts to do so. That case should have gone to the jury. As long as it holds the sway of authority, counsel for this defendant and other defendants may justifiably contend *500for what Mr. Justice Crockett states is counsel’s contention herein, to wit, that virtually no matter how negligent the defendant may be it is still the plaintiff’s duty to avoid the collision, a length to which, however, I do not think the attorney for defendant really goes. Of course, I do not agree with the contention of the defendant in this case that
“if the defendant were traveling 50 miles per hour, that would have been fair notice to the plaintiff that the defendant had no intention of yielding the right of way.”
Certainly if the plaintiff did have that “fair notice” and had time to stop and did not, the jury could under proper instructions, have found the plaintiff guilty of contributory negligence. But the jury would have also had before it the fact that when he timely looked east he did not see any car coming west (toward him) within a distance of 150 to 200 feet; that he saw defendant’s car for the first time when it was 60 feet from him and he was then alerted by the screech of its brakes; and the jury would determine whether this was “fair notice” under those circumstances. The fact seems to be that the defendant counted himself one of those lucky chaps who could speed into intersections and meet no cars. There are minds which appear to operate that way.
Perhaps in the Hickok case, a reappraisement of the situation if it had been made at the right moment would have alerted the favored driver to the fact that the disfavored driver was not going to yield the right of way and perhaps given him time to avoid the collision. I say “at the right moment” because a moment sooner than that “right moment” the driver of the favored car might still have thought the other driver would slow down to let him pass whilst a moment later than that “right moment” it would have been too late to avoid the collision. This points up, I think, the duty we put upon the favored driver in those cases. The disfavored driver has the duty to slow down; and while the favored driver cannot totally ignore *501the other and blindly traverse the intersection, he can, until he is otherwise put on notice, presume that the disfavored driver will slow down and permit him to pass, but it is for the jury to determine whether under all the circumstances the favored driver could indulge in the presumption that the disfavored driver would yield him the right of way and under the circumstances, the weight it should give that presumption, if any. It is just these factors which make it a jury question. In the case of Farrell v. Cameron, 98 Utah 68, 94 P. 2d 1068, this court held that a driver who notes that a car approaching from the opposite direction 100 feet away is 12 to 16 inches over the center line of the highway is negligent as a matter of law if he fails to then turn his car to the right to an extent which will allow the cars to pass if the oncoming car remains over the center line, provided that there is sufficient space to the right in which to turn and time for the driver to do so. In a dissenting opinion I contended that the duty of the driver to move to the right ordinarily would not arise immediately upon seeing the approaching car on the wrong side of the highway, but that the duty to move to the right arose only when the driver had notice or reasonably should have taken notice that the approaching car did not intend to timely retreat to its own side of the highway. Until such time, however, I argued that the driver could assume that the approaching car would observe the law of the road and seasonably move to its proper side of the highway so as to pass without interference. In that case we did not have the benefit of a transcript of the testimony adduced at the trial but had before us only the findings of the trial court. I thought that there was nothing in the findings of fact which would warrant us in concluding as a matter of law that when the approaching car was 100 feet away, the time had arrived when the driver of the other car knew or should have reasonably known that the oncoming car did not intend to move over to its own side of the highway.
*502Somewhat the same principle applies in many of the intersection cases and, as Mr. Justice Crockett suggests, especially in those intersection cases where both drivers are visible to each other throughout their approach and traverse of the intersections. I think my only difference with him is that in the Hickok case the question of whether the circumstances were such that the favored driver should or could have noticed that the other (disfavored) driver was not going to yield his right of way was for the jury. It was not a case for a pronouncement by this court of negligence in law on the part of the favored driver. No attempt should be made at this time to distinguish the Hickok case. It should be expressly overruled or left to die of inanition.
As to Lowder v. Holley, 120 Utah 231, 233 P. 2d 350, I stated in my concurrence the ground on which I placed it. Likewise in Poulsen v. Mannes, 121 Utah 269, 241 P. 2d 152, I did the same thing. I must refer the reader to those two cases for the factors which I thought distinguished them from Hickok v. Skinner, supra, and Conklin v. Walsh, 113 Utah 276, 193 P. 2d 437. Those concurrences included other general observations which I made in this segment of the law which I think are in general accordance with Mr. Justice Crockett’s opinion in this case. However, I shall not guarantee that, but there is no necessity or aid in going into those concurrences. They speak for themselves.
For the above reasons I can concur only in the results.