But the existence of the emergency was not admitted, and could be established only by a finding of the jury. Newman v. Stocker, 161 Md. 552, 555; Harner v. Russell, 185 Md. 519, 527; Baker v. Shettle, 194 Md. 666, 671. See also Notes 79 A.L.R. 1277 and 111 A.L.R. 1019; Restatements, Torts, § 296; Becker v. Beir, 89 N.Y.S.2d 536. There was evidence that the dog was not on the south side of the road, but was alongside or near the boy.
They assert "that the Defendant in this case contributed to the events which brought about the emergency and under such circumstances an emergency instruction is inappropriate." The Court of Appeals discussed the "sudden emergency" instruction in Baker v. Shettle, 194 Md. 666, 72 A.2d 30 (1950): It is held by the weight of authority, that if there is evidence in a case legally sufficient to show that an emergency existed, it becomes a question of fact for the jury.
The Maryland decisions are in accord with this rule as applied to either party in a suit for negligence. In Baker v. Shettle, 194 Md. 666, at page 671, 72 A.2d 30, at page 32, where the defendant driver crossed the center line of the road in order to avoid a car which suddenly appeared in front of him without warning, the court said: "The court, on the facts of the case, was of opinion that the defendant was confronted with an emergency.
However, from the standpoint of plaintiffs, the most that could be required of defendant, whether it be upon a last clear chance basis, or upon the obligation of any one observing another in a place of danger to use care, was the use of reasonable care with the facilities then available to him (supra) and in this case, the condition not having been created or caused by the negligence of defendant, the test would be that of a reasonable man in an emergency. Baker v. Shettle, 1950, 194 Md. 666, 671, 72 A.2d 30; A.L.I. Restatement of Torts, section 296. In this connection, as in all cases involving the question of negligence '* * * injuries which could by no reasonable possibility have been foreseen, and which no reasonably prudent person would have apprehended, cannot form the basis for actionable negligence. * * * the test of foreseeability, or reasonable anticipation as it is sometimes called, must be judged by foresight, not in retrospect.'
This argument, to us, seems lacking in substance. It would appear to be grounded on the rationale of Wilmer v. Rittenhouse, 209 F.2d 554 (4th Cir. 1953), which adopted the rule of Baker v. Shettle, 194 Md. 666, 671, 72 A.2d 30, 32 (1950) and Lashley v. Dawson, 162 Md. 549, 564, 160 A. 738, 744 (1932), that one frightened or bewildered as a consequence of the primary negligence of another is not necessarily guilty of contributory negligence. Assuming the validity of the proposition, we fail to see how it could be applicable here.
We think the proximate cause of the accident was the extraordinary and quite unforeseeable conduct of Roy. If, as the appellees contend, Mason might have avoided the collision at the last moment by driving off the road to the right, instead of turning to the left, and we think this is only a matter of speculation, his action in swerving to the left at the last moment could hardly be deemed negligent. Cf. Kaline v. Davidson, 146 Md. 220, 224. As we said in Williams v. Dawidowicz, 209 Md. 77, 83, `The only emergency was the one created by Williams, which put Aiudi to a choice of stopping or pulling to the right or left'; citing Baker v. Shettle, 194 Md. 666, 671, where we said: `* * * what might ordinarily be negligence in a case where no emergency exists, may not be negligence in the case of an emergency. In such a situation one does not have time to think what is the best thing to do; the emergency occurs so quickly that it would be unjust to apply the rule which governs in the ordinary case.
And there also can be little doubt that one, who by his own wrong has brought about an emergency, cannot invoke the emergency rule. Baker v. Shettle, 194 Md. 666; Warnke v. Essex, 217 Md. 183; 1 Blashfield, Cyc. of Automobile Law and Practice, pp. 547, 552. However, if we lay aside the possibility that the uncontradicted evidence disclosed that an emergency existed, we are unable to conclude that the questions were properly reserved, under Maryland Rule 554 d, for our consideration.
" Probably the leading case establishing the doctrine that action which might or would ordinarily constitute actionable negligence will not be so considered if taken in response to a sudden emergency created by the act of another or for which the defendant is not responsible, where there is no opportunity for reflection and deliberate choice, is Burhans v. Burhans, 159 Md. 370, 150 A. 795. Other cases reaching a similar result include Baker v. Shettle, 194 Md. 666, 72 A.2d 30; Coastal Tank Lines v. Carroll, 205 Md. 137, 106 A.2d 98; Brehm v. Lorenz, 206 Md. 500, 112 A.2d 475; Coastal Tank Lines v. Canoles, 207 Md. 37, 113 A.2d 82; and Mason v. Triplett, 217 Md. 433, 141 A.2d 708 (a 3-2 decision on the facts there involved). See also Williams v. Dawidowicz, 209 Md. 77, 120 A.2d 399, where one defendant's car pulled out of a line of southbound traffic in the path of a northbound car of the other defendant in which the plaintiff was a passenger and the jury was held to have been properly instructed that the driver of the northbound car, the second defendant, was not liable if he had done all that a reasonable person could have done to avoid the accident.
It is also clear that the question whether the defendant acted reasonably under the stress of the emergency — if in fact an emergency did exist — was also a question for the jury to decide. See Robertson v. State, use of Meyer, 216 Md. 175, 139 A.2d 715 (1958); Baker v. Shettle, 194 Md. 666, 72 A.2d 30 (1950); Fogle v. Phillips, 191 Md. 114, 60 A.2d 198 (1948); Harner v. Russell, 185 Md. 519, 45 A.2d 273 (1946); and Newman v. Stocker, 161 Md. 552, 157 A. 761 (1932). In Burhans v. Burhans, supra, the defendant swerved her automobile to avoid colliding with a large dog.
Cf. Kaline v. Davidson, 146 Md. 220, 224. As we said in Williams v. Dawidowicz, 209 Md. 77, 83, "The only emergency was the one created by Williams, which put Aiudi to a choice of stopping or pulling to the right or left"; citing Baker v. Shettle, 194 Md. 666, 671, where we said: "* * * what might ordinarily be negligence in a case where no emergency exists, may not be negligence in the case of an emergency. In such a situation one does not have time to think what is the best thing to do; the emergency occurs so quickly that it would be unjust to apply the rule which governs in the ordinary case.