With the greatest respect for my brother Hyde and the views expressed in his dissenting opinion herein, I concur in the principal opinion written by Judge Clark, and concur also in the disposition of the cause made therein.
It is my view that after the peril arose there was neither sufficient time nor opportunity for defendant to act to try to avoid the collision as that the existence of negligence should be ever adjudged upon the humanitarian theory.
After peril arose hardly more than an instant of time elapsed before the collision. I believe it would be but speculation and conjecture for a jury or a court to undertake to say that in such a fractional space of time anything at all could have been done which would have avoided the collision.
Being of the above opinion I believe the instant situation is one as to which we ought to say that, as a matter of law, plaintiff cannot recover on either primary or humanitarian negligence.
It is said and respondent in his brief contends that defendant's driver should have done one of several other things instead of that which he did do. I think he did the best thing, and did that which most of us, who would thereafter have contended that we were then exercising the highest degree of care, would likely have done under the circumstances which confronted him.
It seems to me that view and contention contrary is but the old story of being able to tell after the event what should have been done, when the critics were not there and were confronted with neither the emergency nor the problem of avoiding collision.
It is not difficult for a litigant, his counsel, a witness or even a juror to look at a situation through the eyes of Mr. Hindsight. There is always a Mr. Hindsight. [36] Sometimes he goes about humble daily tasks. Sometimes he sits in his law office. Sometimes as counsel he conducts the cause in court. Sometimes he testifies as a witness. Often he serves on the jury. He sees clearly and glibly recites how a past occurrence could have been better managed, but, much more likely, if the responsibility had been his, he would have been worried sick and probably would not have done half as well.