¶1(dissenting).
¶2I respectfully dissent from Divisions V, VI and VII of the majority opinion. I agree plaintiff was entitled to an instruction on sudden emergency under her theory of the accident. I am of the opinion however, that the verdict of the jury in favor of defendant on his counterclaim under the facts rendered such error nonprejudicial on both her cause of action and her defense to the counterclaim.
¶3On plaintiff’s cause of action, the sudden emergency instruction related only to the contributory negligence of the decedent. Her theory that her decedent turned into the left lane in an attempt to avoid coun-terclaimant’s automobile approaching on decedent’s side of the road, would have offered an explanation, other than decedent’s negligence, for his position on the wrong side of the road. To recover, plaintiff, of course, also had to establish the negligence of defendant. As the jury returned a verdict for defendant on the counterclaim they must necessarily have found he was not guilty of any negligence which “contributed in any way or in any degree directly to the injury or damages in question”. Therefore, plaintiff could not have recovered on her cause of action even if the jury would have found she was confronted with a sudden emergency and was not contributorily negligent because the jury found defendant was not negligent.
¶4Beck v. Dubishar, 240 Iowa 267, 271, 36 N.W.2d 438, 439-440, presents a comparable situation. There counterclaimant contended the trial court erred in failing to submit a certain specification of negligence to the jury on his counterclaim. The jury had returned a verdict for plaintiff on his cause of action. We said:
“It will be observed that appellee recovered a verdict at the hands of the jury, which necessarily determined in his favor, the negligence of the defendant, the proximate cause of the damage and the freedom of appellee from contributory negligence, which precludes appellant from a recovery under the counterclaim. Appellant is not therefore prejudiced by the failure to submit such issue …
¶5In Olson v. Truax, 250 Iowa 1040, 1044, 97 N.W.2d 900, 903, where the trial court .directed a verdict against plaintiff and the *566jury returned a verdict for defendant on his counterclaim, we said:
“There is no possible theory on which plaintiff was entitled to recover under his claim if, as the jury found, defendant was entitled to recover from plaintiff under his counterclaim. We must conclude, therefore, that if plaintiff’s claim had been submitted to the jury, he could not have recovered thereon. Unless we are to depart from the logic of many of our precedents, withdrawal of plaintiff’s claim from jury consideration, under these circumstances, must be deemed nonprejudicial.”
¶6Our decisions supporting this statement are reviewed in the opinion at 250 Iowa 1044-1047 and 97 N.W.2d 903-904.
¶7I agree with the majority that in many instances a verdict on a counterclaim would not render the failure to give an instruction on sudden emergency nonprejudicial to the defense of that counterclaim. More often than not the sudden emergency is created by an outside agency. In that situation such instruction is essential to explain conduct which counterclaimant alleges is negligence. A finding by the jury that counterclaimant was not contributo-rially negligent would have no relation to the negligence of the defendant on the counterclaim.
¶8I believe, however, under the facts here, the verdict on the counterclaim did render failure to instruct on sudden emergency nonprejudicial. Plaintiff in defending the counterclaim asserts defendant’s conduct in approaching on the wrong side of the road created the sudden emergency. This is the same conduct she claimed as his negligence. The jury by finding defendant was not negligent necessarily rejected plaintiff’s theory as to how the accident happened. They in effect found defendant was not approaching on the wrong side of the road.
¶9I cannot accept the premise from which the majority argues that the jury could find defendant could have approached on the wrong side of the road so as to create a sudden emergency without being guilty of negligence. Here, conduct sufficient to establish one would also establish the other.
¶10I would reverse on counterclaimant’s appeal and reinstate the verdict in his favor.
¶11GARFIELD, C. J., and SNELL, J., join in this dissent.