I am unable to agree with the majority that there was an issue for the jury in this case on the question of freedom from contributory negligence on the part of plaintiff's decedent. Circumstances will permit only a brief reference to the reasons.
The car in which plaintiff's decedent was riding belonged to her. It was being driven by one O'Neil, not only with her knowledge and consent, but for her use and benefit. She is therefore chargeable with whatever negligence there may have been on the part of the driver of her car. I do not understand that this proposition is in dispute in the case. It is mentioned here only to make clear at the outset that the situation is not different than what it would have been if the plaintiff's decedent herself had been the driver of her car. For convenience, we will refer to the car of plaintiff's decedent as plaintiff's car.
Viewing the evidence most favorable to plaintiff, we have this situation. Highway No. 6 is a paved east and west highway. Plaintiff was driving west on the north side, and defendant was driving east on the south side. They were both approaching a place in the highway where another paved highway leaves No. 6 at an angle to the southwest. There were no signs warning defendant of the existence of this highway, and traffic from it was required to stop before entering on No. 6. The plaintiff's decedent intended to take that road. When some 150 feet east of it, the driver of her car saw the defendant's car approaching from the opposite direction. It was night. The headlights of the oncoming car were shining. The driver of plaintiff's car then turned over on his left-hand side of the road directly in the path of the oncoming car and proceeded on the left-hand side of said paved highway a distance of 125 feet until the place was reached where the south-bound road turned from No. 6. He then attempted to cut the corner to get on the south-bound road and drove in front of defendant's *Page 638 oncoming car and the collision occurred. After the driver of the plaintiff's car, when some 150 feet east of the place where the turn was to be made, saw the defendant's car, he did not look again at defendant's car, and paid no further attention to traffic approaching from that direction. This is the evidence on which plaintiff relies to carry the case to the jury on the question of the freedom of plaintiff's decedent from contributory negligence.
It should be emphasized that we are not here dealing with a case where we must apply the general test of negligence, lack of ordinary care. We have a case here where the driver of plaintiff's car was under a positive statutory duty. There were three different statutes designed to promote safety on the highway which were violated by the driver of plaintiff's car, and such violations were negligence per se in two instances and prima facie evidence of negligence in the other. A statute (section 5020) required the driver of plaintiff's car to turn to the right and yield one-half of the traveled portion of the road when meeting another vehicle. Instead, such driver at a time when he could see the defendant's car coming left the right-hand side of the road and turned over on the left-hand side directly in the path of defendant's car and traveled there until the collision occurred. A statute (section 5033) required that such driver in turning to the left from one highway to another, pass to the right of and beyond the center before turning. Instead, he turned to the left 125 feet before he got to the highway leading to the left and attempted to cut the corner close to the left-hand side of the highway into which he was entering. A statute (section 5032) required such driver, before changing his course and making a left-hand turn across the path of cars coming from the west, to first see that there was sufficient space to make such movement in safety. Instead, he attempted to turn from highway No. 6 to the highway leading to the southwest without looking at all; he looked when he was 150 feet from the place where such turn was to be made, saw defendant's car coming, did not look again until he reached the place where the turn was being made and the collision was imminent.
As I understand the majority, these violations are of no consequence in this case because the car of plaintiff's decedent had reached a point a few feet to the south of the south line *Page 639 of the paving on highway No. 6, and on that part of the paving which goes to make up the highway which leads to the southwest. The reasoning is that under such circumstances there is no causal connection between the violations and the collision. There are some prior adjudications of this court which lend some support to the reasoning. But the question of causal connection is one of fact, not of law. Each case, therefore, involving the question must be determined upon its own peculiar facts. As applied to this case, it seems to me that the reasoning is unsound.
What caused this collision? If the driver of plaintiff's car had observed any one of the three statutory duties which he violated, it never would have happened. If the driver of plaintiff's car had yielded one-half of the traveled portion of the road to the defendant by turning to the right when he saw defendant's car coming and remained there until he reached the proper place to turn, and then ascertained whether he could make the movement in safety before attempting to turn, it could not very well have happened. Unless we are to substitute some mere formula for reality, the fact that the collision may have occurred a few feet south of that part of the paving which constitutes paved highway No. 6 proper can be of no consequence. It happened at a point, according to plaintiff's evidence, which might properly be called the south shoulder of No. 6. The presence of defendant's car at that point was the natural, ordinary, and almost necessary consequence of the manner in which the plaintiff's car was being operated. The defendant, as he was proceeding eastward on his right side of the road where he belonged, saw this car coming toward him on the left-hand side of the road directly in his path. He naturally supposed that it would turn to the right and yield one-half of the road. He watched it carefully. He did not dare to turn left and pass it on the left because the driver might wake up about that time and turn to his right and that would cause a collision. Moreover, the statute says that on meeting a car he should pass it on the right-hand side (section 5020). He crowded over on the shoulder of the road so as to avoid a collision. But the on-coming car, when it got almost even with him, turned more sharply to the left directly in his path. The defendant then attempted to turn left, but it was too late and a collision occurred. There is no dispute about these facts. *Page 640 There is a dispute as to whether the collision occurred on the paving which constitutes highway No. 6 or on the additional paving which constitutes a part of the angling road. The majority, as I understand it, make the issue of contributory negligence turn entirely on that question. And the majority, by applying a straight edge, are able to demonstrate that, if the collision occurred where plaintiff claims it did, it would be off the paving which goes to make up paved highway No. 6 proper. It is not claimed that under plaintiff's evidence it would be more than a few feet off. There is testimony by the driver of plaintiff's car that the front end of it was 18 or 20 feet beyond the yellow line. It appears that plaintiff's car was 15 feet long, which would mean that the back end of plaintiff's car was from 3 to 5 feet from the yellow line when the collision occurred. It should be borne in mind that this yellow line extends right up to No. 6, and that it runs nearly north and south, and that plaintiff was traveling west when he reached it. So that, under plaintiff's theory, while he would be off of No. 6, it would be only a few feet off. I cannot see that it makes any substantial difference whether this collision occurred a few feet south of the south line of the paving which is No. 6 proper or a few feet north of that line. The cause of its occurrence is controlling, not the place. The only reason for defendant being off the paving which is a part of No. 6 proper and to his right side was because he was forced off by the negligent and unlawful manner in which plaintiff's car was being operated. There is no reason suggested as to why defendant got off his proper path except the very obvious and natural one, that it was being occupied unlawfully by plaintiff's car coming toward him and that to remain there would cause a collision. It is no answer to say that defendant was mistaken and that, if he had remained on the right side of No. 6, plaintiff would have gotten out of the way before the collision actually occurred. He was confronted with a perilous situation, an emergency. It caused him to do what he did. What he did was an ordinary and natural consequence of the perilous situation. Plaintiff, by violating the rules of the road, created the perilous situation. Under such circumstances there is a direct causal connection between the negligence of plaintiff and the presence of defendant's car at the place where it was and the collision which occurred there. *Page 641
Much is said about the speed at which the defendant was driving, and it may be conceded for the purpose of this discussion that he was negligent. The undisputed fact remains, however, that he made an effort to avoid this collision, and was the only one who made any such effort. It should avail plaintiff nothing that defendant pursued a natural and a proper course to avoid the collision and to escape from the perilous position in which the conduct of the driver of the plaintiff's car had placed him.
There is one thought in connection with the failure to look before making the left turn which should be specially mentioned here. I am not unmindful of the fact that this court has held that one seeking to make a left turn is excused from contributory negligence if, before making the turn, his observations lead him to believe, as a reasonable person, that he can make the turn in safety even though it turns out that he was mistaken. This rule certainly shows a benevolent spirit toward those who violate traffic regulations. I take it that none of us would excuse one who engages in a race with a train to a railway crossing. Yet in that case there is no positive statutory duty as there is in the case of a man making a left turn across the path of oncoming traffic. The rule as announced by the court permits the motorist to race to the turn with such oncoming cars, and, if he loses, he may be excused from contributory negligence on the ground that he thought he could make it. It would seem that, if a traveler wishes to speculate on whether or not he can make it in safety, he might properly be held responsible for his error if he guessed wrong.
But it is not my purpose here to challenge a rule already established but to protest against its further extension. It certainly must be conceded that, if the plaintiff's car had proceeded straight ahead even on the left-hand side of the road in this case, there would have been no collision. Defendant was prepared to pass him on the right-hand side. That was prevented by the plaintiff turning to the left to take this side road. According to his own testimony, he did not look at all before making that turn. He looked the last time when he was 150 feet down the road. So that we are, by the opinion of the majority in the instant case, now saying that, notwithstanding the mandate of the statute, a traveler may make a left turn without looking at all for traffic from the opposite direction — *Page 642 that it is sufficient if he looked when he was 150 feet away from the place where the left turn is made. More than that, we say that proof of such conduct by plaintiff is proof of freedom from contributory negligence, although the plaintiff in turning passed directly in front of a car coming from the opposite direction and a collision instantly occurred, and such oncoming car was at all times visible, and the only possible reason for a failure to see it was a failure to look.
I cannot escape the conclusion that the burden of showing freedom from contributory negligence is not met by evidence of plaintiff's wholesale violation of statutes designed to promote highway safety where it appears that such violation as a natural consequence forced defendant off the path he would have otherwise pursued and into the place where the collision occurred.
I would reverse on the ground that a verdict should have been directed for defendant because the plaintiff had failed to present evidence from which a jury could find plaintiff free from contributory negligence.
I am authorized to say that MR. JUSTICE ANDERSON and MR. JUSTICE RICHARDS join in this dissent.