But this is not the end of the case as the defendant seems to assume. Since "this quality of instinctive action inheres in the emergency doctrine" (Kardasinski v. Koford, supra [ 88 N.H. 444, 190 A. 703, 111 A.L.R. 1017]), and since the emergency doctrine cannot be invoked by one who himself negligently caused the emergency to exist (Cutler v. Young, 90 N.H. 203, 206, 6 A.2d 162), we must examine the record to see whether or not the defendant could be found to have been negligent in placing himself in such a position that when he first became aware of danger he had time only to act instinctively. It appears that the defendant came up behind Humphrey a little less than a mile from the scene of the accident.

Upon this conflict of testimony and exhibits in the case, the Court correctly denied the defendant Corson's motion for a directed verdict. Cutler v. Young, 90 N.H. 203, 204. The plaintiff's case established negligent conduct on the part of both defendants (French v. York, 99 N.H. 90) and was not so "slight and nebulous" as contended by the defendant Corson as to warrant a directed verdict in her favor.

The same rule applies to her exception to the defendant's argument on damages since the jury never reached this issue. Cutler v. Young, 90 N.H. 203, 204. An examination of the charge discloses that the plaintiff's requests were all given in substance which is sufficient. Paradis v. Greenberg, 97 N.H. 173. No question of law is raised by the exception to an instruction in the original charge as to which a supplementary instruction was given at the plaintiffs' request without exception.

As we have perhaps indicated above, the assumption is without foundation and the desired result is impossible. The attitude of the court toward the Johnson case was clearly indicated in Vidal v. Errol, 86 N.H. 1; the two opinions in Bowdler v. Company, 88 N.H. 331 and 90 N.H. 68; and Cutler v. Young, 90 N.H. 203. In the second Bowdler case supra, it was held that "the Johnson case goes to the verge of the law," and in Cutler v. Young, supra, it was specifically stated that "we are not disposed to give it further extension."

In support of this rule see Arizona Cotton Oil Co. v. Thompson, 30 Ariz. 204, 245 P. 673; Mullanix v. Basich, 67 Cal.App.2d 675, 155 P.2d 130; Heinz v. Backus, 34 Ga. App. 203, 128 S.E. 915; Pinkerton v. Oak Park National Bank, 16 Ill.App.2d 91, 147 N.E.2d 390; Williams v. Matlin, 328 Ill.App. 645, 66 N.E.2d 719; Gegan v. Kemp, 302 Mich. 218, 4 N.W.2d 525; Rosenberg v. Mageda, 251 Mich. 696, 232 N.W. 397; Jankowski v. Clausen, 167 Minn. 437, 209 N.W. 317; Gleason v. Baack, 137 Neb. 272, 289 N.W. 349; Long v. Crystal Refrigeration Co., 134 Neb. 44, 277 N.W. 830; Treftz v. Kirby, 146 A. 688, 7 N.J. Misc. 555; Taylor v. Ross, Ohio App., 78 N.E.2d 395, reversed on other grounds, 150 Ohio St. 448, 83 N.E.2d 222, 10 A.L.R.2d 377; Wheaton v. Conkle, 57 Ohio App. 373, 14 N.E.2d 363; Smith v. Pacific Truck Express, 164 Or. 318, 100 P.2d 474; Webb v. Hoover-Guernsey Dairy Co., 138 Or. 24, 4 P.2d 631; Gianini v. Cerini, 100 Wash. 687, 171 P. 1007. Contra, see Cutler v. Young, 90 N.H. 203, 6 A.2d 162; Texas Co. v. Betterton, 126 Tex. 359, 88 S.W.2d 1039; Ivie v. Richardson, 9 Utah 2d 5, 336 P.2d 781. Turning to the second grounds upon which the court sustained defendants' motion for a new trial, as part of his opening statement counsel for Mrs. Caldwell informed the jury that her evidence would show that immediately after the accident occurred Nickerson "* * * told the people there that it was his fault * * *"; and that Nickerson "* * * some three days or so after this collision occurred, went down to Mr. Tritley, who owned the automobile, and admitted that he was in fault in striking the automobile and damaging it, and he told him where to go to get the car repaired, and subsequently he paid for the repairs to the automobile."