Gaches v. Daw

I agree with the majority opinion in deciding that all questions respecting the contributory negligence of respondent and of the negligence of appellants were for the jury to decide as questions of fact.

I am compelled to disagree with the majority in the rejection of the application of Rem. 1927 Sup., § 6362-41, subd. 2, prescribing the rule of the road relating to vehicles proceeding in the same direction on overtaking another vehicle, that such overtaking vehicle shall pass to the left. It is said that this statutory rule

". . . is not applicable to a stationary object. If an automobile is stopped in the center of the highway, it is the same as any other stationary object in that position, and the rule as to it would be the same. To require all vehicles approaching a stationary object in the center of the highway to pass to the left thereof would, in many instances, greatly increase the hazard."

Mrs. Gaches testified that she knew that the red light indicated a car and that she saw the headlights ahead of it. Therefore, it was not a mere obstruction in the highway on which she was traveling, but another car headed in the same direction. If the statute referred to does not govern that situation, then there is no rule of the road controlling such a situation, and drivers of overtaking cars may pass to either side, or stop, as may please them. The law should be as requested in instructions by appellants.

The question was so close as to the controlling negligence of both parties that, in my opinion, the theory of the defense was not properly submitted to the jury, and one or both of the instructions requested by appellants should have been given.

Particularly for the reason that I cannot agree with the observations of the majority that an automobile situated as was that of appellants at the time on the highway was to be considered as nothing but a stationary obstruction, I dissent.