Ebling v. Nielsen , 113 Wash. 698 ( 1920 )

On Rehearing.

Per Curiam.

Upon a rehearing of this case, a majority of the court sitting Bn Banc is of the opinion that a portion of the original opinion, 109 Wash. 355, 186 Pac. 887, as follows:

“Then, under the test of ordinary care and prudence, he was required to have his machine under such speed and control, considering all the circumstances, including any reasonable likelihood of skidding when the, brakes were applied, as would permit him to safely handle his machine without a collision, after he could and should have discovered the motor truck, independent of the question of the sufficiency of the red light. 29 Cyc. 505; Lauson v. Town of Fond du Lac, 141 Wis. 57, 123 N. W. 629, 135 Am. St. 30, L. R. A. (N. S.) 40,” states the law too broadly. It is therefore withdrawn as an expression of our views upon the subject.

We adhere, however, to the conclusion therein reached, that the respondent was guilty of contributory negligence barring him from a right of recovery, and reversing the case with directions to the superior court to enter a judgment dismissing the action.