¶1 (dissenting)
¶2 I am unable to agree with the theory of the majority upon which the judgment is reversed. In my opinion, a pedestrian on a street crossing, having the right of way and being fully aware of an approaching automobile fifty feet away or thereabouts, may rely upon his right of way and assume that the driver of the automobile will respect that right and avoid striking him; or that, if the driver finds he cannot so avoid striking the pedestrian, still the pedestrian has the right to assume that he will be given timely warning by the sounding of the automobile horn so that, by the exercise of his own agility, he may escape the danger. Especially is this true as a pedestrian approaches the middle of the street where his attention must necessarily be diverted to ascertain if there is danger to him from traffic approaching from the opposite direction. No other rule, it seems to me, gives proper effect to the pedestrian’s superior right of way; but, if I am wrong in this, at least under the circumstances of this case the instruc *473 tion complained of was not prejudicial. In my opinion the judgment should be affirmed.
¶3 ■ Fullerton, C. J., and Holcomb, J., concur with Tolman, J. ...