The opinion
McGHEE, Justice (dissenting).
I am of the opinion the trial court erred in giving any instruction on imminent danger. The effect of the instruction was to water down and weaken the instructions on contributory negligence and introduce a false issue into the case.
My reason for this view lies in the entire lack of evidence that Jimmy was aware of danger or that he did, or refrained from doing, anything he would not otherwise have done because of the danger. There appear to be but two cases directly on this point and they are: Hanson v. Matas, 1933, 212 Wis. 275 , 249 N.W. 505 , 93 A.L.R. 546 , and Feck’s Adm’r v. Bell Line, Inc., 1940, 284 Ky. 288 , 144 S.W.2d 483 .
In the Hanson case it was held the injured person was not aware of the danger; that as he was not so aware an instruction on acts done in an emergency would not have been proper.
In Feck’s Adm’r v. Bell Line, Inc., supra, it is stated at page 485 of 144 S.W.2d that the sudden emergency rule applies “only where the evidence discloses that one became aware of an emergency and was put to a rapid choice of alternative courses of action in order to avoid the accident” and the jury might reach the conclusion that the course of action adopted was an unwise one. (Italics by the Court.) In the following paragraph it is stated:
“In the instant case there is nothing in the evidence to indicate that the deceased, Feck, ever realized that he was confronted with a sudden peril or emergency. As far as the evidence goes he may not have seen the truck with which he collided. The evidence wholly fails to show that he became aware of an emergency such as to put him to a rapid choice between two or more courses of action in order to avoid the collision, * *
The plaintiff in that case had asked for an instruction on acts done in a sudden emergency, but for the reasons above stated the court held the ordinary contributory negligence instruction together with the ordinary care instruction, was sufficient — that an instruction on sudden emergency was not proper.
So it is in this case. There is absolutely no evidence that Jimmy was aware of any danger or that he even saw the truck which hit him until the instant of the collision. The evidence of all of the witnesses riding in the bus who saw Jimmy leave is that he was demanding the door he opened and when it did open, Jimmy, who was standing on the lower step, jumped off running fast with his head turned back to the bus until he heard the boy on the step above call, “Look out!”; then it was too late. There is no testimony that Jimmy gave any indication of awareness of any danger or that he changed his course of action one iota — he was in a hurry to get off and away.
It will not do to say the instructions on contributory negligence and ordinary care for one’s safety cured the error in giving instruction No. 18 on sudden emergency. As above stated the effect of this instruction was to dilute the effectiveness of those given on contributory negligence.
For the reasons stated, I dissent.
I concur only in the result in the disposition of the other claimed errors.
FEDERICI, D. J., concurs.