On August 21, 1952, at a few minutes ■past 1:00 o’clock p. m., a collision occurred between a truck, owned by the defendant (appellant) Idaho Hardware & Plumbing •Co., Ltd., and driven by its employee, Fay Smith, defendant (appellant), and a motorcycle owned and operated by the plaintiff (respondent).' The collision occurred in the city of Boise, on 8th Street at a point approximately 94 feet south of the south curb line of Myrtle Street, which intersects 8th Street at right angles. Eighth ■.Street extends in a generally north and '.south direction.
The pláintiff, a youth of twenty years, ■suffered personal injuries in the collision .and brought this action to recover damages, .alleging . that negligence on the part of Smith in the operation of the truck was the proximate cause of the injuries sustained. The defendants allege negligence on the part of the plaintiff as the proximate cause of the collision. From a judgment on the verdict in favor of the plaintiff, defendants appeal. The sole issue presented is the sufficiency of the evidence to support the judgment.
The facts are briefly as follows: August 21, 1952, was a clear, hot day and the pavement was dry. Eighth Street is a designated arterial or through street, and the maximum legal speed limit thereon is thirty miles per hour. Stop signs are maintained at the points of entry from intersecting streets and there was such a sign on Myrtle Street at the point where defendants’ truck entered the intersection. Smith, the driver, and a co-employee had just finished their lunch period and were on their way to a warehouse of their employer on 8th Street. They approached 8th Street from the east on Myrtle Street and came to a full stop near the center line opposite the stop sign. Smith, by extending his arm, indicated a left turn. A vehicle behind him pulled up to his right and made a right-hand turn onto 8th Street. Smith looked to the north and observed the plaintiff on his motorcycle going west across the sidewalk and through a way in the curbing which opens onto 8th Street from a service station some forty or fifty feet beyond and north of the intersection of 8th and Broad Streets. Broad Street is a street running parallel to Myrtle and intersecting ,8th Street one block to the north. Smith then looked to the south and, observing no oncoming north bound traffic *174on 8th, proceeded into the intersection. He testified he had attained a speed of ten miles per hour in traversing the intersection, and that .when he had half completed his turn he again observed the plaintiff approaching the intersection from the north at what he described as a high rate- of .speed, and at a point one-third to one-half of the way up the block from the intersection. Asked why he did not stop at that point, he replied: “I thought it best to get in the main line of traffic. There was still quite a distance-between us.” Smith then completed his turn, entering the west side of 8th Street near the center line.and proceeded . south parallel to the center line, with the left side of the truck approximately three feet.,to the west o.f the line. In making this turn he did not go around the center point of the intersection, but angled more or less directly across from his starting point to where he entered the south bound lane on 8th. After making the turn the speed of the truck was increased to approximately fifteen miles per hour.
. The plaintiff testified that he had just finished his lunch at a “drive-in” or “curb-service” across from the service station at the intersection of 8th and Broad Streets; that he went across to the service station where he had parked his motorcycle, mounted it and proceeded south on 8th Street. His purpose was to return to his employment on the south side of the Boise River where he was due at 1:00 o’clock. The service station being on the east side of 8th, he crossed the sidewalk and entered 8th on a way for vehicles entering and leaving the station, and about forty feet north of Broad Street. Proceeding south on the west side of 8th Street, he accelerated his speed, but said he did not exceed twenty-five to thirty miles per hour. As he approached the Myrtle Street intersection, and at a point about forty feet from the north curb line thereof, he first saw defendants’ truck entering the intersection and about -a distance of four to six feet within the intersection. Observing that the truck would block his path, and allowing for reaction time, he said he applied his brake about fifteen feet north of the north •curb line of Myrtle Street, and that thereafter he intermittently applied and released the brake and swerved to his right; that when he reached a point in the intersection and near the west curb of 8th Street he had reduced his speed to ten miles per hour, and there released his brake entirely, because there was danger the machine would skid from under him and it was necessary to do so in order to straighten it up. At that point -he observed the truck nearby on his left; that he then accelerated his speed, entering 8th Street south of the intersection at a point six feet out, or east, from the-curb line, and, then, as follows:
“Q. What happened as you got to this point? A. I could see that the truck was somewhere in this neighborhood in there, and he was continuing on his course, but I recall I thought for *175a moment there that he would slow down and maybe give me a chance to go on around, and that is the reason for a brief spurt when I turned on the motorcycle fuel to accelerate it more.
“Q. How brief a spurt was it? A. Just a moment of time.
“Q. What did you do then? A. Then as the truck began to continue on in his course, not giving me any acknowledgment whatsoever, he kept crowding me over into this part of the pavement in here (pointing) and then I began to apply the brakes again.
“Q. Why did you apply the brakes again? A. Because I could see that there was a car parked down in here that I might come in contact with.”
There were no cars parked in the parallel parking area on the west side of 8th Street, south of the Myrtle Street intersection, for some distance to the south, the first parked car in that area being opposite the point of impact. The rear end of the car so parked was approximately eighty feet south of the south curb line of Myrtle Street. He had increased his speed up to a rate between 15 and 20 miles per hour. Upon seeing that he might not be able to pass the truck before reaching that car, plaintiff again applied his brake, and traveled south in the unoccupied parking area into which he said he was crowded by the truck. He had slowed down to five miles an hour when he collided in a glancing manner with the left rear fender of the parked car, and skidded into and under the truck on the right side thereof, as the truck was passing the parked car. A photograph (plaintiff’s exhibit 8) of skid marks made by the motorcycle when the brake was applied the second time, shows that the vehicle entered 8th south of the intersection, a little farther out from the curb than the parking area extends, and then entered the parking area on a slant as it proceeded south. This tends to refute plaintiff’s testimony that Smith made a sweeping turn and crowded him into the parking area.
Eighth Street is fifty feet wide. The parked car was 5' 10” wide and standing with its right wheels 18" from the curb; the truck bed was 8' wide and traveling at a distance of 3' west from the center line, it would occupy IT on the west half of the street. That would leave 6' 8” between the passing truck and the parked car. Following the collision, the rear, dual wheels of the truck skidded the motorcycle along the pavement, where it came to a stop 20 to 22 feet south of the point of impact. These skid marks made by the motorcycle commenced at a point in line with the front edge of the front wheels of the parked car, and fourteen feet out from the west curb line of 8th Street.
Plaintiff’s witness, Obenchain, testified he was sitting in a parked car on 8th, about midway between Broad and Myrtle Streets i that he observed the motorcycle coming down 8th Street and as it approached Myrtle Street, he saw the truck in the in*176tersection “just about as his front wheels crossed the yellow line”. Asked, “Approximately how much of his turn had he completed when you first noticed the truck?” he answered, “Well, he was just about a 45 degree angle.” At that time the cyclist was approximately a car length from the north line of the intersection; that he applied his brakes at that point; that he skid-ed some distance and appeared to turn into Myrtle Street, then released his brakes, then .skidded again. Afterward the witness saw skid marks which commenced approximately fifteen feet north of the intersection and at that point he saw red glass upon the pavement, which he thought was reflector or light glass which had fallen from the motorcycle when the brakes were applied.
Pláintiff’s witness, Herndon, office manager of the' Peasley Transfer & Storage Cotnpany, which occupied the building on the northwest corner of the intersection, testified that "8th Street was generally heavily traveled; that he heard brakes squeal, looked tip and observed the motorcycle; that its brakes were applied just north of the intersection; that he followed its course ánd in doing so saw the truck proceeding south oh 8th Street; that the motorcycle ,ahd' the truck traveled south parallel to each other; that the brakes were applied:at!two different intervals, first, when his attention, was attracted by their squealing, and aftér being., released they were applied again.
Plaintiff’s witness, Gilmore, a police officer, who arrived on the scene shortly after the collision, and made measurements of relevant distances, testified the skid marks made by the motorcycle commenced a short distance north of the intersection and continued south veering to the west, intermittently — that is, heavy and light — and weaving snakelike across the intersection to a point near the south line of the intersection, and then again parallel to and in the parking area on 8th Street south of the intersection. The total distance from the point where the skid marks began to the point of impact was 161 feet.
Defense witness, Rosecrans, a deputy sheriff, and defense witness, Kelly,'an experienced motorcycle operator, testified they made experimental tests of the distance required to stop the motorcycle involved in the collision, on dry pavement of the same character as that at the intersection of 8th and Myrtle Streets, with the same tires and brake, and that at twenty miles per hour when the brake was applied it skidded 20' 4", and at thirty miles per hour it skidded 52' 10". These tests were made under conditions involving no emergency, or any occasion to veer the machine out of the line of its travel while its brakes were applied;
Defense witness, Russell, who was at the drive-in, where plaintiff had his lunch,.and watched him leave the service station, said he traveled south on 8th Street at.approximately 25 to 30 miles per hour.
*177Defense witness, Shirley, sitting in a car double-parked about 100 feet north of the Myrtle Street intersection, facing south, heard the motorcycle accelerated as it approached him from the rear and observed its speed as it passed his car, testified, “I knew that he was going at an excessive rate of speed.” and “I would say at least 35 miles, maybe more.” That the next thing he observed was “when he applied his foot to the brake the motorcycle almost jumped out from under him and started to bounce.” At that time it was 50 or 60 feet in front of him and 40 to 50 feet north of Myrtle Street, and “the rear wheel was skidding and jumping from just one side to the other.” That at the time he first noticed the truck it “was almost straightened up onto 8th Street, going south,” and that he thought he saw the motorcycle and the truck at approximately the same time, and that from the time he first heard the motorcycle to his rear, its speed continued to accelerate until the brakes were applied. Mrs. Shirley, who had just alighted from her husband’s car, and gone around to the north and back of the car, intending to cross 8th Street to the east where she was employed, said, “It was coming down the street making a lot of noise and coming real fast, and I was just around to the back of the car when it flashed by me. * * * It was going very fast.” Asked if she could estimate the speed, “No, except that I know that he was going faster than most cars go along that street.” “I started across the street and I just got a little ways —well, I heard the squeal of tires, I guess, and I looked up and saw the motorcycle under the back wheels of the truck.”
Defense witness, Freize, was standing by a window, possibly 75 feet or more north of the intersection. He testified he heard the motorcycle “revving up very fast, and the next thing we knew he was in front of us.” He estimated the speed at 40 miles per hour, and observed, as the operator alternately applied the brakes and let up and then applied them again, the motorcycle seemed to skid and jump. He also testified he had observed the truck stop at the stop' sign and that when he saw the motorcycle the truck “was in the intersection going down the street”; and that when the motorcycle started braking “this truck was already pulling around here.” (The witness, was testifying with a map of the intersection before him, and indicating the position of the vehicles on the map. The record does not show just where in the intersection he located the truck at that time.)
The witness, Bates, who was inside the same window with the witness, Freize, testified he was attracted by the noise of the motorcycle, and that when it got in front of his place “he shifted gears” and that “it looked like it took off the ground. That is exactly what it looked like. He just reared up.” He estimated the speed at 55 miles an hour; that the brakes were applied immediately after it passed his window *178and “it seemed to kind of swerve and jump as it went along,” and “it seemed like he slowed down and speeded up again.”
The witness, Warner, who was at the service station from whence the plaintiff commenced his ride, testified that plaintiff entered the street from the station at a point about fifty feet north of the intersection of 8th and Broad Streets; that he set out at an excessive speed. The witness estimated plaintiff had attained a speed of 20 to 30 miles per hour just after he had crossed the Broad Street intersection, and that he built up speed as he proceeded south.
The block from Broad Street south to Myrtle is three hundred feet long. Broad and Myrtle Streets are each fifty feet wide. It also appears from the testimony that 8th Street is ordinarily heavily traveled, but at this particular time there was not much traffic moving upon it. Traffic had just begun to pick up after the noon lull.
It is apparent from the foregoing facts that there is no substantial evidence of negligence on the part of the driver of the truck. Had he known at the time he observed the motorcycle entering 8th Street more than a block to his north, and immediately after which he started into the intersection, that the cyclist would turn south on 8th and proceed at the speed he did toward Myrtle Street, it would of course have been more prudent to remain longer at the stop sign. But, as it was, observing no traffic interfering from either direction, he proceeded into the intersection and, after having completed half of his turn onto 8th, he again observed the motorcycle still at ■ sufficient distance to the north that he thought it best to get into the main line of traffic and proceed south out of the intersection.
It is urged that he could have stopped at that point. But, at' the speed plaintiff says he was traveling, he would be going 44 feet per second, and it is observed there was not much time for deliberation, whether we accept plaintiff’s testimony, as to how close he was to the intersection, or that of the defendant Smith. Smith must be presumed to have been aware that to stop he may have risked a collision from his rear or from his left. He must also be presumed to have known that the law requires an overtaking vehicle in passing another going in the same direction, to pass to the left, § 49-512,1.C., and that the plaintiff in compliance with the law might undertake to turn to the left in order to pass. To say that there was no traffic from the rear, nor from the left and that the plaintiff did not undertake to pass to the left and that, therefore, Smith could have safely stopped midway through the intersection and allowed plaintiff to pass, is not of itself sufficient to establish negligence in his failure to do so. Nor does it appear negligent on his part to have completed his turn, and to continue south at an accelerated speed. It would seem, if plaintiff needed additional space either to stop or get his motorcycle *179under control, that was the best way for the truck driver to provide it for him.
On the other hand, the evidence is quite overwhelming that there was negligence on the part of the plaintiff which was the proximate cause of the collision. It is evident that he approached the intersection at a negligent rate of speed, and that upon observing the truck in the intersection he had difficulty in controlling the movements of his machine, and after slowing it down to a speed of 10 miles per hour, he again accelerated to 15 or 20 miles per hour with the.purpose in mind of passing the truck on the right, when he again discovered an obstruction in his path and again applied his brakes.
We are inclined to view the en- ■ tire evidence on the issue of negligence on .the part of the plaintiff as sufficiently conflicting, as to certain material facts, to require the application of the rule that in such cases the question of contributory negligence is for the jury. However, even so assuming, it is still necessary to find negligence in the conduct of the defendant Smith in order to sustain the judgment. As we have seen, the only way this could be done would be to impose upon Smith the duty to make a correct diagnosis of the entire situation in a matter of seconds and to have thereupon stopped midway in the intersection. The law allows a plaintiff, seeking damages'for negligence, to excuse himself for an error in judgment occasioned by an emergency. There is no reason why the same rule should not be applied to a defendant, particularly where the emergency was not created by any negligence on his part. If any emergency confronted the parties at this point it was created by the plaintiff. At the time Smith saw the cyclist approaching the intersection, he was a sufficient distance to the north that Smith was justified in concluding that he was not in imminent peril, and that he would be able to avoid a collision. Under such circumstances Smith could not be held on the theory that he had the last clear chance to avoid the accident. The doctrine of last clear chance was neither pleaded nor urged in this case. Moreover, the plaintiff did actually slow his machine down to 10 miles per hour, a speed from which it could have been safely stopped before reaching the parked car, had he not again accelerated it in an effort to pass the truck on the right. Thus he created a second emergency which, except for the sound of his motor, was unknown to Smith. Under these circumstances, the evidence would not support a verdict against Smith on the theory of “last clear chance.”
Generally speaking, negligence is never presumed. 65 C.J.S., Negligence, § 204. The mere happening of an accident or the occurrence of injury does not give rise to a presumption or inference of negligence. 65 C.J.S., Negligence, § 220(1). The burden was upon the plaintiff to establish negligence on the part of defendant Smith, and that such negligence was the *180proximate cause of his injuries. Clark v. Chrishop, 72 Idaho 340, 241 P.2d 171; 65 C.J.S., Negligence, §§ 207, 208 and 209; 38 Am.Jur., Negligence, § 285. The facts indicate that the plaintiff has failed in both •of these elements of his case. In addition to the want of negligence on the part of Smith, it appears that the more remote proximate •cause was excessive speed on the part of the plaintiff, and that the immediate proximate cause was the acceleration of the motorcycle, after it had been slowed down to 10 miles an hour, for the avowed purpose of passing the truck. Stearns v. Graves, 62 Idaho 312, 111 P.2d 882; Chatterton v. Pocatello Post, 70 Idaho 480, 223 P.2d 389, 20 A.L.R.2d 783; Clark v. Chrishop, 72 Idaho 340, 241 P.2d 171, 65 C.J.S., Negligence, § 103, p. 645 ; 38 Am.Jur., Negligence, § 54.
The judgment is reversed and remanded with directions to dismiss the action. Costs to appellants.
KEETON, J., and BAKER, District Judge, concur.