noting that "appellant driver, when she was suddenly faced with the emergency created by the appellee driving on the north side of the road, could have driven off the traveled portion of the highway on the north berm; she could have driven straight ahead in the hope that the appellee would turn to the south in time to have avoided the collision; she could have driven on the south half, as she did; she could have driven completely on the berm on the south side far enough to have missed the appellee when he turned south; and she could have applied her brakes at once in an effort to slow down while pursuing any one of these courses"
How later courts described this case
- noting that "appellant driver, when she was suddenly faced with the emergency created by the appellee driving on the north side of the road, could have driven off the traveled portion of the highway on the north berm; she could have driven straight ahead in the hope that the appellee would turn to the south in time to have avoided the collision; she could have driven on the south half, as she did; she could have driven completely on the berm on the south side far enough to have missed the appellee when he turned south; and she could have applied her brakes at once in an effort to slow down while pursuing any one of these courses"
Written by the judges who cited it.
The opinion
Concurring Opinion
YOUNG, J.
I concur in the result reached in the prevailing opinion ini;his case. I think the judgment should be reversed and a new trial granted because of error in refusing to give instruction number 4 requested by appellant. I cannot agree, however, with that portion of the prevailing opinion which holds that the only reasonable inference to be drawn from the conduct of appellee and the facts appearing in this appeal is that his negligence was a proximate cause of the collision as a matter
*468
of law. I think that reasonable men might differ about this and that whether or not, under all the facts in the case, appellee’s conduct in getting 18 to 24 inches to the left of the center of the road for a few seconds was a proximate cause of the injury is for the jury to decide.
Jones
v.
Cary
(1941), 219 Ind. 268 , 37 N. E. 2d 944 , which is cited in the prevailing opinion, is distinguishable from the case before us. In
Jones
v.
Cary, supra,
the appellants drove to the left and on to the left hand side of the road and the accident occurred upon their left hand side of the road. In the situation before us, however, the appellee was on his right side of the road at the time of the collision and the appellants were on their wrong side of the road at the time of their collision. Under such circumstances, I think the question of proximate cause should be left to the jury and this court should not weigh the evidence and decide that question.
Starr, C. J., concurs in this opinion.
Note.—Reported in 85 N. E. 2d 629 .