Irvin v. City of Kingsport

OPINION ON PETITION TO REHEAR

Appellee, City of Kingsport, has filed a petition to rehear, the gist of which appears to be: if Miss Moore had reacted in a similar manner as truck driver Robertson and steered to the left, the collision would have been avoided. It is insisted that Miss Moore’s driving straight ahead was contributory negligence when she had the alternative opportunity to steer to the left and avoid the accident.

There is one flaw in petitioner’s argument. So far as the record shows, to Mr. Robertson’s left was clear but to Miss Moore’s left was the Robertson vehicle. If she had reacted similar to Mr. Robertson, she stood a great chance of pulling into the side of or being hit by the Robertson truck from the rear. Under the circumstances Miss Moore had very little choice but to strike the street sweeper or probably be struck by the Robertson vehicle. We recognize that Miss Moore, confronted with a sudden emergency, was not relieved of the obligation to exercise ordinary care under the circumstances that existed. However, as we pointed out in the original opinion, if she exercised such care as an ordinary prudent person would in a like emergency, she is not liable for the resulting injury. Under the circumstances that existed when this accident occurred, we see no way that Miss Moore could determine ahead of time how she could entirely extricate herself from a collision. Without time to deliberate, we do not believe the accuracy of the judgment used under the circumstances warrants a finding that she is guilty of contributory negligence.

Let the petition to rehear be denied.

GODDARD and FRANKS, JJ., concur.