Plаintiff brought .an action for personal injuries arising out of an automobile accident between vehicles driven by plaintiff and defendant. Hpon trial the jury returned a verdict for defendant. Plaintiff filed a motion for а new trial which was granted by the trial court. Defendant has appealed from the order granting a new triаl.
The two vehicles were traveling in opposite directions on a graveled county road. They met on a sharp, steep, blind curve. It was an inside right-hand downhill curve for plaintiff and an outside, left-hand, uphill curve for defendant. There were three tire tracks worn in the gravel. Two of the tracks were on the inside оf the curve and on plaintiff’s side of the road. At the time the operators of the vehicles sighted eаch other each was traveling with their left-hand wheels in the center track. At that time they were from thirty to fifty feet apart. Plaintiff was traveling about twenty miles per hour and defendant about twenty-five.
*538 Defendant testified that upon sighting plaintiff’s vehicle he pulled his vehicle to the right to where he was straddling the track on the outside of the curve. He further testified that plaintiff applied his brakes, skidded over to defendant’s side of the road, and collided with his vehicle. Plaintiff denied applying his brakes or ever being on defendant’s side of the road.
Plaintiff requested an instruction on sudden emergency which was refused. The instruction was as follows:
“If you find from the evidence that either of the parties to this case was suddenly placed in a position оf peril, through no negligence of his own, and he was compelled to act without any opportunity for reflection, then if he took such action as a reasonable prudent and careful persоn placed in the same position might take, he would not be guilty of negligence even though he did not takе the wisest action and even though such action as he did take, if it meets the above test, caused thе vehicle operated by him to go onto his left hand side of the road.”
The failure to give this instruction was one of the bases for plaintiff’s motion for a new trial. An order granting a new trial will be reversed only where it cannot be sustained upon any ground assigned in the motion.
Goggan v. Consol. Millinery Co.,
The court did not err in allowing the motion for a new triаl. The giving of the instruction would have been proper. The trial court believed his failure to give it was prejudicial. The defendant’s testimony that when he first sighted plaintiff he pulled from plaintiff’s side of the road to his own and that plaintiff applied his brakes and skidded onto defendant’s side *539 of the road was sufficient to justify the giving of an emergency instruction. From this testimony the jury could have found that plaintiff was presented with a sudden emergеncy of defendant’s making when plaintiff came around the curve and found defendant facing him on plaintiff’s side of the road.
Defendant claims an • instruction on emergency was not proper because рlaintiff did not show he had alternative choices of action.
Frangos v. Edmunds,
■The jury was instructed that each party was required to drive on his own side of the road. If the jury acceptеd defendant’s testimony as to plaintiff’s presence on defendant’s side of the road, it should have been allowed to decide whether he was caused to skid there because of the sudden appliсation of his brakes in the gravel and, under proper emergency instructions, whether he was in fact negligent because of it.
The factual situation in this ease is comparable to that in
Fenton v. Aleshire,
The defendant contends that the instruction was inapplicable because plaintiff denied having made any conscious choice, putting on his brakes, or being on thе wrong side of the road. Nevertheless, the jury could have inferred from defendant’s testimony that such was the сase. Plaintiff was entitled to instructions covering all theories of the case supported by comрetent evidence.
Bailey v. Opp,
The granting by 'the trial court of plaintiff’s motion for a new trial is affirmed.