(dissenting) — I agree with the majority that appellant was guilty of negligence and that he was not acting under a “sudden emergency.” However, I am of the opinion that respondent was guilty of contributory negligence.
Although it. cannot be said that the bottle of vodka was the proximate cause of the accident, there is no question but that it caused the accident. These people had been on a drinking party which started at a night club at one o’clock a. m. and apparently continued, without cessation, at respondent’s apartment, a tavern, and the home of friends. For some reason not shown in the record, late in the afternoon they decided to part company. Appellant got into his car, which was in the driveway, started the motor, depressed the clutch, and put the gear shift in reverse. Respondent decided to leave with a woman companion in *52another car. Just as she was ready to leave, she remembered the bottle of vodka. Deciding to obtain what rightfully belonged to her, she got out of her companion’s car, walked over to appellant’s car, knocked on the window, and opened the door, and reached for and obtained the bottle of vodka. Upon seeing this, appellant instinctively lunged for the bottle himself, and the car started to back up. Both parties were intent upon one thing — the possession of the bottle of vodka. The proximate cause of the accident and respondent’s resultant injuries was the action of respondent in opening the door and reaching for the bottle, coupled with the lunge which appellant made. The negligence of both parties contributed to the accident.
January 28, 1954. Petition for rehearing denied.