As I view the evidence, the plaintiff was confronted with an emergency which was created by defendant's failure to observe him as he entered the intersection. Defendant was then thirty or forty feet south of the intersection and traveling in excess of thirty miles an hour. Plaintiff was traveling fifteen to twenty miles an hour. He had twenty feet to go to the point of collision; she, fifty or sixty. He had the choice of going ahead or attempting to stop. If he had made the latter choice, obviously, he would still have been hit — only further toward the front of his car. For, he could not possibly have avoided stopping in the path of defendant's car.
There are two rules applicable to the situation: First, plaintiff, as the favored driver, was entitled to proceed until, by the exercise of reasonable precaution, he observed that defendant, the disfavored driver, was not going to yield the right of way. Second, acting as he did in the face of an emergency, which was not of his own creation, he is not chargeable with negligence because of wrong judgment. Reed v.Tacoma R. P. Co., 117 Wash. 547, 201 P. 783. In that case, the court said, p. 549:
"Error of judgment is not necessarily negligence. The correct test in cases of this character is, did the person act as a reasonably prudent person would have acted under similar circumstances? The mere fact that one errs in judgment is not conclusive proof that he did not act as a reasonably prudent person would have acted under like circumstances."
In the emergency with which he was confronted, I think that plaintiff took the only course that might *Page 128 have avoided a collision. He should not be charged with negligence because the choice made was ineffectual.
BEALS and MILLARD, JJ., concur with BLAKE, J.