¶1 dissenting:
¶2 Under ordinary circumstances (not involving the-last-clear-chance doctrine) the law does not impose upon an automobile operator in the right the duty of taking the initiative to avoid an approaching operator in the wrong; or the duty of anticipating that the latter will create an emergency before yielding the right of way; or the duty of anticipating that the latter will turn the wrong way after the emergency has arisen. In other words, the law does not put all the burden on the one in the right to avoid a collision where the one in the wrong has equal opportunity to do so. Yet, it seems to me that is exactly what the majority opinion has permitted the jury to do in this instance, since the declaration herein exonerates Nichols.
¶3 The undisputed facts show that Batten and Nichols approached each other over a one-way traffic lane; that Batten had been lawfully admitted to the lane by a road flagman, while Nichols was in the lane without lawful permission; that for several hundred feet west of the place of collision, the berm to the right of Nichols afforded him ample opportunity to have turned aside for *649 Batten to pass; and that no circumstance occurred as the two were converging, which should have warned Batten in advance that Nichols would yield the lane reluctantly. Since Batten had the right of way, the law permitted him to assume in advance of an emergency that Nichols would turn to his right onto the berm at a timely moment. When Batten realized that Nichols was not doing so, and an emergency had arisen, Batten did precisely what the statute directs — he turned to his right. The collision would have been avoided then had Nichols either remained in the lane or turned to his right. In the emergency, however, which Nichols himself had created, he did precisely what the statute forbids — he turned to his left. Each turned out of the lane appreciably at •the same moment, hence the collision. A very prudent man might have anticipated the conduct of Nichols in time to have avoided the accident. The standard fixed by law, however, is not the caution of the very prudent man, but merely that of the ordinary man. Batten must be judged by that standard. I submit that nothing more could be required of the ordinary man in Batten’s position, than compliance with the statute. Moreover, the only negligence charged to Batten in the declaration is driving the truck “at an excessive and unlawful rate of speed, and operating the same on the wrong side of the public road.” Both of those charges are disproven.
¶4 The principles of law stated in the majority opinion are sound but of what relevancy here? What are the admonitory “circumstances, conditions or consequences,” referred to in the majority opinion, which Batten, as an ordinary man may have disregarded? What is the “ordinary care” which he possibly omitted? Neither the declaration nor the majority opinion discloses.
¶5 Finding no legal duty omitted by Batten and finding neither allegation nor proof supporting the judgment, I respectfully dissent.