(dissenting).
I am unable to agree with the majority opinion in this case. !It treats of the allegation of error in overruling the defendant’s demurrer to the evidence, but does not dispose of the allegation of plaintiff in error that the trial court erred in denying defendants’ motion for a directed verdict. It may not have been reversible error to overrule the demurrer to the evidence but, in my opinion, the motion for a directed verdict should have been sustained. As I view the evidence, defendants in the court below established by substantially uncon-tradicted evidence, the defense of unavoidable accident.
The defendant bus driver testified that there were two rows of traffic going south on Western Avenue the morning of the accident; that he was in the row nearest the west curb of Western Avenue; that suddenly and without warning, a southbound car in the row immediately to his left turned sharply to the right, cutting in front of the bus only five or six feet ahead of it, and whipping into a private driveway on the west side of Western Avenue; that he succeeded in bringing the bus to a stop only a few inches from the car, which had stopped in the driveway with its rear end protruding about 3 feet into the street.
The driver’s testimony was fully, corroborated by a bus passenger, a disinterested witness. It was indirectly corroborated in some particulars by the testimony of plaintiff herself.
It was also shown by uncontradicted evidence that while plaintiff was being treated for her injuries, which at first seemed to be of a minor nature, she said that some one suddenly drove in front of the bus and the driver, in order to avoid an accident, had to stop suddenly; that it could not possibly have been the driver’s fault and that'he used good discretion.
Under the facts in this case, I think the following rule from Brown v. Saylor, 204 Okl. 154, 228 P.2d 187, should control.
“Where the evidence in support of a defense in an action consists only of the testimony of the interested defendants, and the physical facts and circumstances, and the testimony of such witnesses, if true, fully sustains such defense and is positive, undenied, and uncontradicted, the trial court should direct a verdict for defendants, unless the physical facts and the circumstances surrounding the transaction tend to contradict the positive testimony, * * * in which case the question is one for the jury.”
It will be noted that the testimony of the driver in this case was corroborated by the testimony of a bus passenger; in that respect, the facts in this case go beyond the bare requirements of the above rule, since the other witness here was not an “interested defendant.”
*642The majority opinion says that the matter of the necessity of the stop was for the jury. While that would undoubtedly have been true if the evidence on that point had been in conflict, I feel that where, as here, the evidence was substantially undenied and uncontradicted, the court should have taken the case from the jury and directed a verdict for defendant.
The defense of unavoidable accident is an affirmative defense, which, when proven, requires the production of affirmative evidence to meet, explain or rebut it. In my opinion, plaintiff failed to come forward with evidence.
I respectfully dissent.