The rehearing involved the point raised by the defendant's request for an instruction that no verdict could be returned on the theory that Mr. Chapdelaine could or should have stopped his car to enable his passengers to alight after the course of the McDonald car was appreciated.
The plaintiff's testimony warranted the inference that the defendant knew that the McDonald car was on the wrong side of the road when it was at the distance of 400 to 500 feet. The defendant's testimony might be thought to lend some color to this. It could be found that a stop by the defendant (possible within forty feet, as he testified) would have given the plaintiff time to alight. This would be true if the brakes had been applied when the cars were 300 feet apart, and possibly when they were somewhat closer.
Under these circumstances, it cannot be said as a matter of law that there was no duty to stop in order that the plaintiff might get out. It would be a question for the jury whether ordinary care required the defendant to stop or to retain control of the car by continued motion, with a last-moment attempt to swerve out of McDonald's course. "Whether it is the duty of a driver on the right side of the road seeing an automobile approaching on the wrong side of the road to stop to avoid a collision cannot ordinarily be determined as a matter of law. The driver who is on the right side may *Page 422 assume, on the first appearance of the other vehicle, that it will change its course, and the particular point of time when he is no longer warranted in indulging such assumption is for the jury in an action for injuries resulting from a collision." Blashfield, Cyclopedia of Automobile Law and Practice, s. 787. See also Johnson v. Burnham, 198 Wn. 500; Breedlove v. Galloway, 109 W. Va. 264; Pinder v. Wickstrom, 80 Ore. 118; Whitworth v. Riley, 132 Okla. 72.
Former result affirmed.
All concurred.