¶1 (concurring in reversal). I concur in the result reached by Mr. Justice Wiest; but I am not in accord with that portion of his opinion wherein he states:
“Upon this claim (that plaintiff by suddenly jumping or' stepping back into the path of the auto *300 mobile created an emergency) defendant requested an instruction that, under such a sudden emergency, negligence should not be found merely because the driver did not, when so confronted, adopt a different course to avoid the accident. The claimed emergency, under the driver’s testimony, was not wholly created by act of plaintiff. ’ ’
¶2 To hold that the emergency, if so caused, “was not wholly created by act of plaintiff,” is in effect to hold as a matter of law that the driver of the automobile was guilty of some negligence which caused or contributed as a cause to ,the emergency. Under this record his negligence was a question of fact. If the emergency was caused wholly by the act of plaintiff, the defendant was entitled to have the request given, at least in substance, as preferred. The trial court might well have balanced his charge to the jury by also stating that in case the jury found as a fact that the driver was guilty of negligence which helped to bring about the emergency, then he was not entitled to the benefit of the requested charge. Since a new trial is granted, I think the, law as stated above should be embodied in our opinion.