Aside from the question as to whether or nor the driver of the bus was guilty of negligence, it is quite clear that the driver of the Dodge car, defendant in error's husband, was guilty of negligence which was either the proximate cause of his death or which contributed materially thereto, thereby barring any recovery by the defendant in error. *Page 1114
In Volumes 3-4 of Huddy's Cyclopedia of Automobile Law (9th ed, Sec. 130) it is said:
*Page 1115"The law of the road does not give the driver of a machine a license to pass a slower vehicle under all circumstances. He can do so only when reasonable prudence permits the passing. The driver of the overtaking car must have a thought, not only for the overtaken vehicle, but also for vehicles approaching from the opposite direction. He should not attempt to pass where he is unable to get back to his own proper position, so as to avoid a collision either with the approaching or with the overtaken vehicle. Although statutes or municipal ordinances may permit or require a faster vehicle to pass another on the left side thereof, the driver of the rear vehicle should not attempt this course when injury is likely to be thereby occasioned to a vehicle approaching from the opposite direction. Under such circumstances, it may be said that he is bound to exercise a "high degree of care", or the highest care, or extraordinary care, both for his safety and that of the approaching traveler. If a driver does attempt the passage without information of his intention to the traveler approaching from the other way, and such traveler is unable by an exercise of due diligence to avoid a collision, the former is liable for the injuries sustained by such traveler, for he should wait a suitable opportunity before attempting the passage.
"However the mere fact of a collision does not establish the negligence of the passing party. Much depends upon the condition of the highway and the surrounding circumstances, as well as the distance away of the third vehicle. The fact that the driver of the forward car is also guilty of negligence does not excuse the negligence of the rear car driver in passing.
"From the point of view of the traveler approaching from the opposite direction at the time a rear vehicle attempts to pass another going in the same direction, the passing conveyance is on the left or wrong side of the highway. In some jurisdictions the matter is specifically regulated by statute. Regulations may prohibit passage by the rear vehicle unless the way is clear for a specified distance ahead, such as one hundred yards, or two hundred yards. * * * * * *
"When an injury arises by coming into contact with an on-coming vehicle in passing or attempting to pass a vehicle in front, the questions as to negligence arising therefrom are generally for the jury."
While the foregoing quotation deals with the meeting of a second vehicle while passing a slower vehicle, the rules laid down applicable to such a situation might well be applied where an automobile driver was in the situation of the driver of the Dodge car in this case; that is, when he drives up behind two automobiles parked on the right hand side of the road while another motor vehicle is closely approaching from the opposite direction.
I am very much impressed with the very able opinion of MR. JUSTICE TERRELL, in which he takes the position that the weight of the evidence, and the legal effect thereof, shows that the bus driver was not guilty of negligence. The weight of the evidence shows that the bus driver was travelling at a very moderate rate of speed, twenty-eight to thirty miles per hour, well on the right hand side of the road, when approaching the situation presented by the evidence in this case, of two cars parked on his left and a third car coming up behind them from the opposite direction to which he was going. Even if, in abundance of caution he might have slackened his speed still further so as to prevent or minimize the danger of a collision if the car approaching from the opposite direction should negligently have attempted to pass the two parked cars at the same time that he was passing them, it might be said, in reply to this, that the bus driver, travelling as he was on the right hand side of the road, had the right to assume that the car approaching from the opposite direction would not be guilty of a negligent act, by attempting to pass the two parked cars while he, the bus driver, was passing on. Moreover, it appears from the evidence that this collision occurred on a highway, the paved portion of which was twenty feet wide, that the parked cars were partly off the *Page 1116 highway, on the East side, and the motor bus, when approaching and passing the parked cars, had swerved out to its right and was partly off the highway on the West side, its right hand wheels being about two feet beyond the edge of the pavement, thus leaving plenty of space between the two parked cars and the path the bus was travelling within which the Dodge car could have passed in safety if properly driven, without coming in contact with either the parked cars on its right or the bus on its left. The evidence tends strongly to show that the Dodge car was going rapidly and made too wide a turn, thus colliding with the bus. Under these circumstances, it seems to me that the proximate, moving and efficient cause of the collision was the negligence of the driver of the Dodge car; that even if the bus had been going only ten or fifteen miles per hour at the moment of impact, the collision would nevertheless have occurred, due to the negligence of the driver of the Dodge car.
In Seaboard Air Line Ry. Co. v. Watson, 94 Fla. 571,113 So. 716, it was said:
"Although the plaintiff was not under the evidence chargeable with the contributory negligence of her husband, yet if he was negligent in driving the automobile upon the track in front of the approaching railroad cars, and this negligence on his part was the sole proximate cause of the collision and the resulting injury, plaintiff would have no right to recover against the defendant railway company.
"It is negligence which proximately causes or contributes to causing the injury or damage which creates legal liability. There may be concurrent causes of a single injury — concurrent negligence of two separate and distinct agencies — which, operating contemporaneously, together constitute the efficient proximate cause of the injury inflicted, and without either one of which the harm would not have been done. But if two distinct causes are successive and unrelated in their operations, they cannot be concurrent. One of them must be the proximate and the other the remote cause, and the law *Page 1117 will regard the proximate as the efficient and the responsible cause, disregarding the remote cause." Citing 22 R. C. L., 128. See also 22 R. C. L. 132-133.
I am inclined to think, therefore, that the preponderance and weight of the evidence, and its legal effect, showed that the sole proximate and moving cause of the collision and resulting tragic effect, was the negligence of the driver of the Dodge car, defendant in error's husband, and that the judgment should accordingly be reversed.
TERRELL, J., concurs.