dissent">COMPTON, J.,

dissenting in part.

The facts of this case present a classic jury issue on sudden emergency. Therefore, I disagree with the majority’s conclusion that Cahoon was guilty of negligence as a matter of law in creating the emergency.

In deciding that Cahoon should not be accorded the benefit of the sudden emergency doctrine, the Court sends the following message: a motorist should avoid lawfully overtaking another vehicle in a passing zone because, if trapped in the passing lane by movement of the overtaken vehicle, the passing motorist will be adjudged guilty of negligence as a matter of law when confronted with an oncoming vehicle.

One of the majority’s complaints with Cahoon’s driving is that Cahoon did not explain to the majority’s satisfaction why he never applied his brakes during the course of his trip down the left side of the road. The Court labels “absurd” Cahoon’s explanation that he “never had the opportunity to apply them.” I submit that braking in a passing lane while travelling 50 miles per hour in an attempt to swerve in behind an overtaken vehicle, which is travelling at erratic speeds, is a hazardous maneuver at best. The usual split-second reaction of any reasonable motorist is to make the effort to overtake and pass. In any event, however, the judgment whether Cahoon should have aborted the passing, accelerated, or maintained his speed anticipating that DePew would let him past, *9is one the jury should make because reasonable persons certainly may differ on that question.

I likewise disagree with the majority’s assertion that the “only emergency that ever existed in a legal sense arose when Twiford rounded the curve in the lane of travel occupied by Cahoon.” The emergency situation arose when DePew, either intentionally or accidentally, prevented Cahoon from completing his passing movement which, the majority recognizes, was begun in a lawful manner. At any rate, however, that question also properly was for the jury.

Therefore, I believe the jury correctly was permitted to decide whether Cahoon was confronted with an emergency, whether it was created by his own negligence, and whether, given all the facts, he acted reasonably under the circumstances. Thus, agreeing with the Court on the damage question, I would affirm the judgment below.

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