dissenting.
This case is controlled by two prior decisions handed down by this Court just a month apart over fifteen years ago. Any misunderstanding as to the application of the sudden emergency rule was put to rest by the unanimous opinions in Dewey v. Keller, 86 Idaho 506, 388 P.2d 988 (1964), and Hackworth v. Davis, 87 Idaho 98, 390 P.2d 422 (1964), both authored by Justice McFadden. Bale v. Perryman, 85 Idaho 435, 380 P.2d 501 (1963) on the other hand, was not a sudden emergency case. The membership of the Court was the same in all three cases; significantly, Bale v. Perry-man, the earliest of the three, was not even mentioned in Dewey v. Keller or Hack-worth v. Davis. Nor should it have been, for the simple reason that sudden emergency was not involved in Bale v. Perryman. In Bale v. Perryman there was not even any question of emergency, sudden or otherwise. In that case contributory negligence was still in effect, and was the salient issue on the appeal, where the plaintiff admitted passing at an intersection in outright violation of the statute prohibiting such conduct. The Court held, and this is the holding of that case, that violation of a positive statutory prohibition “is negligence per se and not merely prima facie evidence of negligence, (citing cases.)” Id. at 440, 380 P.2d at 503.
From there on the Court in that opinion discussed Bale’s conduct and found the record:
“conclusive that the act of respondent [Bale] in undertaking to pass within the prohibited area constituted negligence per se; that such act was not unavoidable or occasioned by circumstances beyond his control; neither was it justifiable nor excusable.”
Id. at 443, 380 P.2d at 505. Paragraphs earlier the Court stated:
“Respondent frankly admits that he was undertaking to pass the vehicle ahead of him within the 100 foot area specifically prohibited by the statute. There is no other reasonable interpretation of the evidence than to conclude that the voluntary act of respondent, which was a violation of law, resulted in his damage and proximately caused or contributed thereto.”
Id. at 442, 380 P.2d at 505.
In discussing Bale’s conduct, and only in that regard, the Court stated “that certain circumstances furnish an excuse or justification for the negligence presumed to arise on proof of violation of a statute or ordinance.” Id. at 443, 380 P.2d at 505. Borrowing language from the Iowa case of Florke v. Peterson, 245 Iowa 1031, 65 N.W.2d 372 (1954), the Court categorized four possible circumstances which might have furnished an excuse or justification for the negligence presumed to arise on *774proof of violation of a statute or ordinance1 —one of which was “[a]n emergency not of the driver’s own making by reason of which he fails to obey the statute.” Bale, 85 Idaho at 443, 380 P.2d at 505. Bale, however, did not claim to have acted in any emergency in voluntarily passing at the intersection, and there was no issue of emergency in the case, let alone any issue of sudden emergency. None of the four possible excuses was found to have application. Bale passed in a zone prohibited by statute, and in that sense his conduct was just like that of Gonzales in the instant case — a driver who followed too closely in violation of a statute.
As the Court stated in Bale, and applicable here:
“Clearly the statute here involved (I.C. § 49-713) is a safety statute enacted for the protection of all persons using our roads and highways.”
Id. at 442, 380 P.2d at 505.
That Gonzales voluntarily followed too closely behind the Mann vehicle, or traveled at an excessive speed under the circumstances, or both, is readily apparent from his own testimony:
“Q. From your testimony, when you first saw her stop or hit the curb or whatever you testified to, how far back were you did you say, how many car lengths?
“A. I said probably two, somewhere in that area.
“Q. And why was it after you observed Mrs. Mann stopping her vehicle that you were unable to either stop yourself or get around the vehicle without hitting the Mann vehicle?
“A. The roads were slick.
“Q. . . So I take it that generally you were simply too close to stop when you saw the Mann vehicle stopping; is that a fair statement?
“A. To stop right directly behind her, yes.
“Q. (By Mr. Plankey) Your car hit the rear of the car Mrs. Mann was driving, correct?
“A. Yes, her left rear.
“Q. And you were unable to stop after you saw her stop, right?
“A. I wasn’t really trying to stop.
“Q. (By Mr. Plankey) Well, what were you trying to do?
“A. Well, it happened so fast that the first thing I did was hit the brakes. And it was very icy. I didn’t have full control of the car. I saw there was a little bit of room around from where she was protruding, so I was shooting for that.
“Q. And you were going 20 miles an hour?
“A. Probably less than that by then.
“Q. Well, what made you reduce your speed?
“A. I saw her car.
“Q. But in any event you simply — after you saw her car stopped, you couldn’t get yourself stopped in time, right?
“A. That’s more or less true, yes.
“Q. Were you sleepy that morning?
“A. I was tired. I was used to it. I wasn’t really sleepy.
“MR. PLANKEY: Your Honor, for purposes of examination from the deposition, I would like to have it published and give a copy to Mr. Gonzalez at this point.
“THE COURT: Mr. Gonzalez, here is the court’s copy of your deposition. If you will take that, Mr. Plankey will refer you to pages and lines, will read you the questions which were asked at that time and the answer which you then gave. And then he will then inquire if you did give that answer; and then he may examine you further if there is any inconsistency.
*775“Q. (By Mr. Plankey) Turning to Page 34, Mr. Gonazlez, Line 10, were you asked this question and did you give this answer: ‘With respect to what you have labeled as Maple Avenue, when you first saw her car, was it at the Maple Street intersection? Is that what you’re saying.’
“Answer: ‘I’d say that’s about correct. You know, I wasn’t very observant that morning. I was still a little sleepy.
“Q. Did you in fact answer that way the day that that deposition was taken?
“A. That’s the way I answered it, yes.'
“A. . . . But there were more cars on the side of the road and snow and the kids.”
Such testimony, under the holding of Bale might be said to require that Gonzales be held negligent as a matter of law. However, Bale was decided at a time when any negligence on the part of a plaintiff precluded recovery. Here we are concerned with the negligence of a defendant where the law of comparative negligence is applicable. Accordingly, the cause should be retried for error below in giving the instruction requested by defendant, which advised the jury that they could excuse Gonzales’ negligence because of the sudden emergency which confronted him when the Mann vehicle slid into the curb on attempting to turn at the intersection.
The sudden emergency cases of Dewey v. Keller and Hackworth v. Davis are applicable, although given little mention in the Court’s opinion. In Dewey v. Keller, the doctrine was held to have no application:
“For such doctrine to be applicable it is essential that the facts shall show a sudden emergency did exist. Barry v. Arrow Transportation Company, supra [80 Idaho 447, 333 P.2d 1008]; Stuart v. McVey, supra [59 Idaho 740, 87 P.2d 446]; 8 Am. Jur.2d, Automobile and Highway Traffic, § 1030; Sadoian v. Modesto Ref. Co., 157 Cal.App.2d 266, 320 P.2d 583 (1958); Lubliner v. Ruge, 21 Wash.2d 881, 153 P.2d 694 (1944). Here no person charged with negligence or contributory negligence acted within the sudden emergency doctrine.” (Emphasis added)
86 Idaho at 514, 388 P.2d at 992.
The instruction given in that case, though held not applicable, was a proper instruction of the doctrine.2 Of the doctrine this Court, citing earlier Idaho cases, said:
“This Court has recognized that this doctrine is applicable when one who, without fault on his- part, is suddenly and unexpectedly placed in a perilous situation, so as to be compelled to act instantly and without an opportunity to exercise deliberate judgment. Under such circumstances he is not chargeable with negligence if in attempting to escape from the peril or to avoid or minimize the threatened injury he acts as a person of reasonable prudence would or might have acted in the same or similar situation.”
Id. at 513, 388 P.2d at 992. Dewey v. Keller arose out of a house being stalled at night time on a public highway. A deputy sheriff was on the scene and in charge some ten minutes before Dewey drove into the house and was killed. Ice-covered roads were not involved.
Just a month later the same Court handed down its opinion in Hackworth v. Davis, 87 Idaho 98, 390 P.2d 422 (1964), a case which is on all fours with this. Davis, who was alleged to have followed too closely and at too great a speed for circumstances then existing gave testimony in that case similar to the testimony of Gonzales in this case:
*776“ ‘Q. Now, let’s establish one more distance. After Mr. Cussen passed you, did you speed up or did you slow down?
“ ‘A. I slowed down.
“ ‘Q. To what speed?
“ ‘A. I just let up on the gas. Then after following a ways I presume my speed picked up a little.
“ ‘Q. Then you were going about the same speed, about 30 miles an hour? ‘“A. Yes.
“ ‘Q. How far then did you stay behind the Cussen car up to the point of the accident?
“ ‘A. Four or five cars.
“ ‘Q. How far would that be?
“ ‘A. The average car is 16 feet.
“ ‘Q. And it was four car lengths? “ ‘A. Four or five.
“ ‘Q. Could it have been three?
“ ‘A. No, I thought it sufficient enough distance for ordinary conditions.
“ ‘Q. This was not an ordinary condition?
“ ‘A. No, sir.
“ ‘Q. It was pretty slippery and you were four car lengths behind?
“‘A. Yes.’”
Id. at 102-103, 390 P.2d at 424.3 Davis requested and the trial court gave an instruction on the sudden emergency doctrine. In reversing for a new trial, this Court held that the instruction was improperly given. In that case, as in this, the plaintiff vehicle was rear-ended by a following vehicle. In that case, the plaintiff vehicle came to an abrupt stop on the highway, without any warning, when another oncoming passenger car slid across the icy highway and hit the plaintiff vehicle head-on; in this case the abrupt stop of the plaintiff vehicle was caused by its slipping on the ice and hitting the street curbing, with advance warning to the following vehicle that the plaintiff vehicle was slowing and was turning toward the intersection on its right. In both cases the roadway was exceptionally slick. In Hackworth v. Davis, on the open highway out of town, the defendant Davis followed at a speed of about 30 miles per hour, on a bridge without intersections; in this case the city speed of Gonzales was between 30 to 20, “probably” slowing down. The following vehicle in Hackworth v. Davis was back four to five car lengths when the plaintiff vehicle abruptly stopped; Gonzales admits to being back only two car lengths. In both cases, the icy roads made it impossible for the following vehicle to avoid running into the abruptly stopped vehicle.
In both cases the negligent conduct charged against the respective driver following was following too closely and traveling at a speed which was excessive under conditions then existing — both charging violations of safety statutes. Conversely, in neither case was there any claim of negligence on the part of Davis, or on the part of Gonzales, for what each did or did not do after the sudden emergency which in each case was the abrupt halt of the vehicle being closely followed.
What was said in Hackworth applies here, and requires that a new trial be had free of the error of the giving of such an instruction:
*777“For a party to be entitled to have an instruction given on the theory of ‘sudden emergency’ in rebuttal of a claim of negligence (or contributory negligence, as the case may be), the record must contain facts from which it could be found that the sudden emergency relied upon was not of his own making. Stuart v. McVey, 59 Idaho 740, 87 P.2d 446; Barry v. Arrow Transportation Company, 80 Idaho 447, 333 P.2d 1008. In the instant action, respondent Davis is charged by appellant with following the Cussen car too closely, or in travelling at excessive speed under the circumstances. Appellant does not contend that Davis was negligent in the control of his truck after the Stanfield vehicle struck the Cussen car, and Davis’ conduct after the emergency, is not an issue here. The only issue to be resolved by the jury was whether Davis was negligent in the operation of his truck prior to the time of the Stanfield-Cussen collision, and his conduct after that collision not being claimed to have been negligent, the ‘sudden emergency’ doctrine was not applicable and no instruction embracing it should have been given.” (Emphasis added)
Hackworth, 87 Idaho at 108, 390 P.2d at 428.
ADDENDUM:
Since the foregoing was written a special concurring opinion has been filed because of the failure of the Court’s opinion and the dissent “to adequately distinguish between the ‘sudden emergency’ instruction, of which Dewey v. Keller, 86 Idaho 506, 388 P.2d 988 (1964), is typical, and the instruction given in this case, which is more appropriately called a ‘justification’ or ‘excuse’ instruction.”
The special concurrence suggests that it was proper here to give the Bale instruction because one part of it has supposed application: “(3) An emergency not of the driver’s own making by reason of which he fails to obey the statute.” This statement of the law is but little different from the sudden emergency instruction. The latter was couched in terms of a person being “suddenly confronted by an emergency not due to negligence on his own part,” whereas Bale, part (3), speaks of a driver’s being faced with “an emergency not of the [driver’s] own making.” Both principles of law have the same purpose — to absolve a driver from his negligence where he has been confronted with a sudden emergency — one which did not arise from that which he himself did. A driver will be so absolved only if his own negligence did not contribute to the creation of the emergency.
The statement in Bale quite obviously is premised on emergency situations over which the driver had no control, and caused the driver to violate a statute or ordinance.
The special concurrence also suggests that “Gonzales’ conduct after the emergency arose was an issue.” On this premise it is then claimed this case is distinguishable from Hackworth and Dewey. I disagree, and thought that the testimony of Gonzales conclusively proved otherwise. In that view I am sustained by the similar view set forth in the Gonzales brief:
“The evidence establishes, however, that Gonzales was fully in control of the automobile he was driving until he was confronted with the emergency created by the plaintiff’s losing control of her automobile and striking the curb. Thereafter, he attempted to slow his vehicle and steer to the left of the plaintiff’s automobile, but was prevented from doing so because of road conditions, the presence of oncoming traffic, the abrupt stop of the plaintiff’s vehicle, and the protruding of at least that vehicle’s left rear fender •into his lane of travel.”
Obviously Gonzales, from the position he had put himself in, could do nothing once Mrs. Mann’s vehicle went into a skid.
As to Mrs. Mann’s vehicle going out of control, it is difficult to accept the proposition that this was, or should have been, unexpected. Mrs. Mann was driving extremely slow and signaled her intention to turn right far ahead of the MorningsideEleventh Avenue East intersection. All traffic was driving on an inch of ice covered *778by an inch of snow. Under those conditions a driver has to anticipate the unexpected which, it may be surmised, is the very reason for the statutory prohibition against following too closely, and requires speed to be controlled in accordance with existing conditions of the road. Other than that Gonzales followed the Mann vehicle so closely that he couldn’t stop or turn when her car skidded and hit the curb, there would have been no so-called emergency. To adopt the other point of view is to say that drivers tailgating other vehicles down the highway will always be absolved of liability for rear-ending the vehicle ahead so long as it was no doing of theirs that the preceding vehicle came to an abrupt stop. The other point of view quite apparently is satisfied with the Gonzales argument “that Gonzales was fully in control of the automobile he was driving until he was confronted with the emergency created by the plaintiff’s losing control of her car and striking the curb.” If that is sound, then Hack-worth was decided wrongly, because Davis, too, had complete control of his vehicle, in fact, greater control because of the added traction attributable to a heavy logging truck. Control, however, means more than being not out of control — it means and the statutes mandate that a following vehicle must stay far enough back and proceed at such a speed so as to avoid becoming involved with the preceding vehicle if it is brought to a stop, which on city streets is often occasioned by children darting into the street, children wandering on bicycles, and dogs chasing dogs. As I understand the other point of view, following too closely is a wrong only when your vehicle overtakes and slams into the rear of the preceding vehicle which is still moving down the street.
The special concurrence does bring out one point which I had also considered as worthy of mention in my earlier effort. On page 950 it is stated that of the four Bale excuses or justifications, “Three of these ‘excuses’ are arguably not relevant to this case and should probably not have been included.” If the word “probably” is stricken, as it should be, I agree.
In concluding what I first wrote, I quoted the Court’s statement at page 108, 390 P.2d at 428 in Hackworth for the proposition that the sudden emergency instruction should not have been given here. The balance of that statement, and applicable as well to the other three “excuses” reads:
“The giving of such an instruction improperly interjected the issue of whether there was or was not an emergency, and would tend to divert the attention of the jurors from the resolution of main issues of negligence and proximate cause.”
Hackworth, at 108-09, 390 P.2d at 428. Here, then, interjected improperly for the jury’s consideration, in addition to the emergency issue and totally for juror speculation, were the issues of whether there was:
“(1) Anything that would make compliance with the statute impossible; (2) Anything over which the driver has no control which places his car in a position violative of the statute; . . . (4) An excuse specifically provided by statute.”
So in Werth v. Tromberg, 90 Idaho 204, 409 P.2d 421 (1965), where the Bale statement of law was given as an instruction, to a challenge on appeal that the giving of it was prejudicial error, the Court there wrote:
“With this contention we agree. There were no facts presented which justified instructing the jury on the exemption from compliance with the statute. .
“However, there were facts, namely, the presence of the trees along the driveway, which the jury erroneously could have considered in light of this instruction, upon which they could render a verdict for the respondent. Thus, by reason of this instruction, the jury could have found that although Tromberg entered the highway in violation of Werth’s right-of-way, nevertheless, they could have found his action was excusable because of his difficulty seeing the roadway through the trees. The presence of the trees is not such a cause or thing which makes *779‘compliance with the statute impossible,’ or ‘something over which the driver had no control which placed his car in a position violative of the statute,’ or ‘an emergency not of the driver’s own making by reason of which he fails to obey the statute.’ Yet on the basis of this instruction, the jury could have been misled into believing that the trees excused or justified Tromberg’s entering the highway, if indeed he did. .
“Because Instruction No. 23 might have misled the jury into believing that Tromberg’s negligence was excusable, such instruction was prejudicial to the appellant and constitutes reversible error.” (Citations omitted)
Id. at 211-12, 409 P.2d at 425. Mann’s brief very aptly applies that case to this:
“The jury instruction is of the type that would tend to divert the attention of the jurors from the main issues involved in this case which were basically that the defendant was following the plaintiffs’ car too closely and was traveling at excessive speed under the circumstances and because of this negligence he ran into the rear end of plaintiffs’ automobile. The defendant’s negligent actions were of the type of continuing negligence, beginning at a point of time well before the accident which did occur in the instant case. These actions were independent of any emergency, and in fact because of these prior negligent actions on the part of the defendant, the accident did occur. This accident was clearly not a sudden emergency, not of the defendant’s own making, the defendant testified that he saw the plaintiffs’ signal light, defendant stated he was too close to plaintiffs’ car to stop and that he was too close to plaintiffs’ car to move into the southbound lane of traffic.”
Our attention has also been brought to Haakonstad v. Hoff, 94 Idaho 300, 486 P.2d 1013 (1971), where the Court made an extensive review of the “four excuses” earlier recognized in Bale. After observing that the statement had been picked up from the Iowa court, the Court noted that Iowa in turn obtained it from Ohio, and with painstaking care aimed at avoiding the type of mixup we clearly have here, said of the Iowa decision:
“There the distinction is drawn, and properly so, between the common law rule of reasonable care or care which a reasonably prudent man would exercise under like circumstances, and the rule in the instance of a statutory violation:
“ ‘The Ohio Supreme Court has made the distinction: “Since the failure to comply with * * * a safety statute constitutes negligence per se, a party guilty * * * cannot excuse himself from compliance by showing that ‘he did or attempted to do what any reasonably prudent person would have done under * * * similar circumstances.’ A legal excuse * * * must be something that would make it impossible to comply with the statute 4c 4c 4c ft > tf
Id. at 301-02, 486 P.2d at 1014-15.
The Court in Haakonstad accurately repeated what the Iowa court said of the Ohio opinion, but the Iowa opinion was not entirely accurate. The Ohio court, after noting that the trial court gave a sudden emergency instruction similar to that given in Hackworth v. Davis (conduct of a reasonably prudent person acting under emergency conditions), said this:
“Since the failure to comply with the provisions of a safety statute constitutes negligence per se, a party guilty of the violation of such statute cannot excuse himself from compliance by showing that ‘he did or attempted to do what any reasonably prudent person would have done under the same or similar circumstances.’ A legal excuse, precluding liability for injuries resulting from the failure to comply with the statutory requirements respecting the operation of a motor vehicle on the public highways, must be something that would make it impossible to comply with the statute, something over which the driver has no control, an emergency not of the driver’s making causing failure to obey the statute, or an *780excuse or exception specifically provided in the statute itself. The instruction of the court in the instant case substituted the rule of ordinary care for the specific requirements of the statute. It made the duty of the defendant Harvey Transfer Company the same as it would have been had the statute not been enacted.” (Emphasis in original.)
Bush v. Harvey Transfer Co., 146 Ohio St. 657, 67 N.E.2d 851, 855-56 (1946).
In the Iowa case, the court there in addition to placing reliance on the foregoing passage from Bush v. Harvey Transfer Co., also relied on this statement of a California court:
“ ‘Evidence of due care * * * does not furnish an excuse or justification for the negligence presumed to arise on proof of violation of the ordinance.’ Gallichotte v. California Mutual Building & Loan Ass’n, 4 Cal.App.2d 503, 41 P.2d 349, 351.”
Florke v. Peterson, 245 Iowa 1031, 65 N.W.2d 372, 376 (1954).
If the Court is to accept the categorization of excuses or justifications of Florke as it did in Bale, and as it does today, it is crucial that it understand that case, and apply it in all particulars. Florke is not concerned with a defendant who claims to have been in the exercise of due care or control as he blithely violates a safety statute — but is concerned with legal excuses only. Haakonstad should have served to clarify any misunderstanding as to what the Court was talking about in Bale — legal excuses for violating a safety statute.
That this Court in Bale and the Iowa court in Florke were concerned only with legal excuses is made absolutely clear by examining the exact context in which the four categories were set forth in the Iowa case:
“We have set out at some length the testimony on plaintiff’s behalf bearing on the question of his claimed ‘legal excuse.’
“The evidence is not sufficient to pose a jury question. We have in earlier cases classified ‘legal excuse’ in four categories: 1. Anything that would make compliance with the statute impossible; 2. Anything over which the driver has no control which places his car in a position violative of the statute; 3. An emergency not of the driver’s own making by reason of which he fails to obey the statute; 4. An excuse specifically provided by statute. Kisling v. Thierman, supra, 214 Iowa at page 916, 243 N.W. 552, and Amelsburg v. Lunning, 234 Iowa 852, 857, 14 N.W.2d 680. For other statements of what constitutes legal excuse, see 65 C.J.S. Negligence, § 19h; Larkins v. Kohlmeyer, 229 Ind. 391, 98 N.E.2d 896, 900; Bush v. Harvey Transfer Co., 146 Ohio St. 657, 67 N.E.2d 851, 855.”
Florke at 374-75.
It should be amply clear that this Court has consistently held, in line with all authority, that a driver may not escape liability because he “prudently and carefully” violated a safety statute. The Court has heretofore enumerated the legal excuses which a driver might offer for his violation of a safety statute. What we observe here is that Gonzales’ own testimony established that he followed too closely and at an excessive speed under conditions then and there existing — and though having no legal excuse for so doing, was given the benefit of an instruction which told the jury of not one, but four possibilities which they could consider as his excúse for having done so.
Given such an instruction, it is understandable that the jury would fail to comprehend that Gonzales had no excuse for following too closely or traveling too fast, in which event it is natural that the jurors’ focus would be on Mrs. Mann — but for her car skidding on the ice the prima facie negligence of Gonzales would have caused no harm.
Concluding, the reader of the three opinions in this case will wonder as to the premise upon which the jury found negligence on the part of Mrs. Mann, it only appearing that her slow-moving vehicle slipped on the ice as she was negotiating a right turn. At oral argument a question in *781search of an answer to that question was not satisfactorily answered.
Although the Mann complaint alleged the manner in which Gonzales was negligent, and those theories were presented to the jury with proper instruction, the Gonzales pleading only alleged the conclusion of negligence on the part of Mann, and the jury was given no instruction setting forth the Gonzales theory of plaintiff’s negligence. I do not see this as an issue on the appeal, however, and it does not appear that Gonzales was ever asked to specify the acts allegedly negligent, nor was any instruction on the theory of plaintiff’s alleged negligence requested.
It is mentionable, though, as an element compounding the erroneous giving of instruction No. 15. Notwithstanding that the law is generally that slipping on ice is not negligence in and of itself, absent conduct which may bring about the slipping, the jury here, by trying to apply instruction 15 could have had its attention diverted from the driving of Gonzales to the skidding of the Mann vehicle — and thereby saw an easy solution to the case and one which they would logically believe the trial court saw as within their province to accept.
A thorough study and analysis of the opinions in Hackworth v. Davis, Bale v. Perryman, Dewey v. Keller, Werth v. Tromberg, and Haakonstad v. Hoff convinces me that the Court today will soon discover that it has unsettled the principles of law announced and then clarified by the Court in those cases.
. As will be hereinafter discussed, the Court’s statement in Bale was slightly inaccurate. The excuses or justifications so categorized by the Iowa court were “legal” excuses, as is also discussed infra.
. The instruction, in the text of the opinion reads:
“ ‘I instruct you that the law recognizes that men are often confronted by and must act in emergencies. When a man is suddenly confronted by an emergency not due to negligence on his own part, if he acts as a reasonably prudent person under the circumstances would act, he cannot be charged with negligence because in such emergency he may not have done that which now can be seen may have prevented an accident. It is not a question of what was the safest or best thing to do. The question is what, under the circumstances, would a reasonably cautious and prudent person have done.’ ”
86 Idaho at 513, 388 P.2d at 992.
. In addition to the testimony of Davis quoted in the opinion, Davis also testified:
“Q. You really didn’t have very much time to apply your brakes, Mr. Davis?
“A. Not very much, no.
“Q. Mr. Davis, in answer to a question asked you on direct by Mr. Brown, you stated that you could have done nothing to prevent this collision. Isn’t it a fact you could have dropped further behind the Cussen car and had more room to stop and prevent this accident?
“A. Well, I have been driving I believe almost 20 years.
“Q. Couldn’t you have dropped further behind from the Cussen car?
“A. I could have, yes.
“Q. And that would be: you could have dropped further back from the time that you were being passed on this sharp comer, clear up to the point of impact which would be seven or eight-tenths of a mile, isn’t that trae?
“A. Yes.
“MR. COGSWELL: That is all we have, Your Honor.”