dissenting.
In Blake v. Continental Southeastern Lines, 161 Ga. App. 869 (289 SE2d 551), following a trial and the granting of the defendant’s motion for directed verdict and the denial of the plaintiffs similar motion, this court reversed in part and affirmed in part.
In substance we therein held that the trial court erred in directing a verdict in favor of the defendant on the issue of negligence. In doing so there was much discussion by this court with reference to the uniform rules of the road. At page 873 we find the following: “ ‘It is generally the duty of the driver of an automobile to anticipate the presence of other travelers on the highway, and to have due regard for their rights to the use thereof.’ [Cit.] ‘In order for a party to be liable *722for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient, if in ordinary prudence he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might result.’ [Cit.] Trailways had a duty to the deceased to comply with all rules and regulations with respect to its use of a controlled-access highway such as S. R. 365. Whether Trailways breached that duty, and whether that breach was the proximate cause of the death of appellant’s husband, are, under the facts in the case at bar, questions for the jury. [Cits.]”
On the return of the remittitur from this court to the trial court, the defendant filed a motion to define the scope of the trial in accordance with the ruling of this court, and plaintiff obtained leave to file an amended complaint. In this amended complaint the plaintiff contends the defendant failed to exercise ordinary care in the operation, management and control of the motor vehicle in compliance with all rules and regulations with respect to the use of the road. In my opinion plaintiffs amendment sought to elaborate his pleadings within the ruling of the court on the remaining issues involved. Plaintiff contends that the defendant by and through its duly authorized agent and servant disregarded the rules of the road in one or more of the following respects: Negligently and carelessly failed to anticipate the presence of other travelers on the highway and to have due regard for their rights to the use thereof; negligently stopped or parked its motor vehicle in the emergency lane in violation of OCGA § 40-6-203 (a) (1) (I) (formerly Code Ann. § 68A-1003 (a) (1) (I) (Ga. L. 1974, pp. 633, 676)); negligently started its vehicle which was stopped, standing or parked in the emergency lane when such movement could not be made with reasonable safety in violation of OCGA § 40-6-122 (Code Ann. § 68A-603), supra; negligently failed to yield the right-of-way to the plaintiffs decedent approaching upon the roadway before entering from the emergency lane in violation of OCGA § 40-6-73 (formerly Code Ann. § 68A-404 (Ga. L. 1974, pp. 633, 658)); and, negligently operated the vehicle at a rate of speed lower than the minimum speed limit established for said highway in violation of OCGA § 40-6-184 (b) (formerly Code Ann. § 68A-805 (Ga. L. 1975, pp. 1582, 1584)), all of which was the direct and proximate cause of the death of the decedent. Clearly this amendment came within the ruling of this court as to the grounds of negligence to be considered. The amended complaint was in four counts, but it is not necessary to set out same in consideration of the case sub judice.
Defendant then moved for partial summary judgment, in substance, to limit the issues for trial contending that this court in Blake v. Continental Southeastern Lines, 161 Ga. App. 869, supra, *723had established the law of the case, based upon the uncontradicted evidence at the first trial, in defendant’s favor with respect to all of the allegations of negligence “except the utilization of the paved shoulder” as provided in OCGA § 40-6-203 (a) (1) (I) (Code Ann. § 68A-1003), supra, and relying on the transcript of the evidence at the first trial that partial summary judgment should be granted in its favor “on all of the issues of negligence in plaintiff’s complaint as presently amended except the allegation regarding the stopping or standing of the bus on the paved shoulder... in violation of [OCGA § 40-6-203 (a) (1) (I) (Code Ann. § 68A-1003)].”
The evidence thus considered on summary judgment is in substance the following: The defendant’s bus, under the control of an experienced driver as a driving instructor, was on a training mission on the morning of May 15, 1978, on a controlled access four-lane divided highway travelling north in an overcast condition, “a hazy day.” The instructor had a trainee driver pull into the emergency lane and replaced him behind the wheel in order to direct him as to what he was doing wrong and how to correct it. The emergency flashers on the bus were engaged while the bus idled. The instructor then engaged the left turn signal, checked his rear view mirror and began to return to the highway in the right hand lane. He saw only one automobile in his rear view mirror at the crest of a hill approximately six tenths of a mile behind him to the south, felt he had plenty of time to get on the roadway safely “travelling at approximately 20 m.p.h” (emphasis supplied) as he entered the highway. At that particular point in time the driver of an automobile (assumed to be the driver of the automobile cresting the hill seen by the bus driver), the only eyewitness to the impact of the vehicles in the incident, observed the bus in the right traffic lane “travelling approximately 20 m.p.h.” Hence the eyewitness moved into the left traffic lane travelling “at 57 m.p.h.” At that point in time, he testified plaintiff’s decedent “travelling at approximately 65 m.p.h.,” passed him on the right and he (eyewitness) slowed his automobile to 45 to 50 m.p.h. so the decedent would have sufficient room to move in the left lane and avoid the bus, “at least 150-175 feet,” but the decedent failed to do so, running into the rear of the bus. He testified that he later measured the distance between the crest of the hill and the point of collision of four tenths of a mile, estimating the bus had travelled 75-90 feet from the first time he saw it to the time of impact. The two trainees in the bus, as well as the driver, testified that after the bus entered the highway at 20 m.p.h. it had reached “the speed of approximately 30 m.p.h.” at the time of impact, the bus having travelled “between 345-500 feet from where it had been stopped to the point of impact.” The testimony of an expert witness offered by the plaintiff was that *724this was a controlled-access highway in which a vehicle should not stop on the shoulder “except for an emergency” and a vehicle entering such highway from the emergency lane at a speed less than 40 m.p.h. created an unsafe situation, “the proper procedure for doing so was to accelerate on the shoulder to at least the minimum legal speed before merging into the right lane of the roadway.”
After a hearing the aforesaid motion was granted. The trial court in a previous order had stated that the defendant had withdrawn its motion to define the scope of the trial. The grant of this partial summary judgment is here under review.
It has been many times held that issues of negligence, including such related issues as contributory negligence and proximate cause, are ordinarily not susceptible of summary adjudication either for or against the claimant, and a court should not take the place of the jury in solving them except in plain and indisputable cases. See Wakefield v. A. R. Winter Co., 121 Ga. App. 259, 260 (174 SE2d 178); Maddox, Bishop, Hayton Frame & Trim Contractors v. Lambdin, 123 Ga. App. 61, 64 (179 SE2d 310); Bussey v. Dawson, 224 Ga. 191, 193-194 (160 SE2d 834); Garrett v. Royal Bros. Co., 225 Ga. 533, 535 (170 SE2d 294). Defendant’s voluminous motion for partial summary judgment maintains that the court should strike all averments “except the utilization of the paved shoulder,” and requests the trial court to grant it a partial summary judgment on all of the issues of negligence in plaintiff’s complaint as presently amended “except the allegation regarding the stopping or standing of the bus on the paved shoulder... in violation of [OCGA § 40-6-203 (a) (1) (I) (Code Ann. § 68A-1003)].” To this the majority agrees. I do not agree that the trial court was correct in granting defendant’s motion for partial summary judgment.
On the first appearance in this court, we limited the discussion to the negligence in the improper utilization of the emergency lane of the controlled access highway and held that the defendant had a duty to the decedent to comply with all rules and regulations with respect to the use of the controlled access highway; and an issue of material fact remained as to whether the defendant breached its duty and whether that breach was the proximate cause of the death of plaintiff’s decedent under the facts of the case at the trial (which are the same facts on which partial summary judgment has been granted) hence questions remain for jury determination with respect thereto. Clearly, the collision occurred after the vehicle returned to the right lane of the highway, at a speed of 20 m.p.h. (albeit opinion testimony) and had reached only a speed of 30 m.p.h. (again opinion testimony) when plaintiffs decedent slammed into the rear of the bus (albeit there was opinion testimony that he was exceeding the 55 m.p.h. *725speed limit at that point in time). Proof of negligence was shown in the improper utilization of the paved shoulder involving the return to the highway in which an expert witness had testified it was unsafe to enter the roadway from the shoulder “at a speed of less than 40 m.p.h.,” regardless of uncontroverted testimony that emergency flashers had been engaged while the bus was idling in a stopped position on the shoulder, a left turn signal had been engaged as the driver checked his rear view mirror and began his return to the right lane of the highway. There are issues of material fact for jury determination with reference to distances and opinion testimony with reference to the speeds of the various vehicles involved in the incident and as to the motor vehicle driven by the eyewitness.
With reference to this court’s determination in Blake v. Continental Southeastern Lines, 161 Ga. App. 869, 872, supra, the following averments relating to the rules and regulations for the use of the highway are clearly involved in the claim of “negligence in the improper utilization of the paved shoulder ... of a controlled access highway.” These are: Failure to anticipate the presence of the other travellers on the highway, albeit the bus driver testified he saw only one vehicle approaching; movement back into the right lane of the highway when same could not be made with reasonable safety, albeit the bus driver testified the left turn signals on the bus were engaged; failing to yield the right-of-way in entering the right lane from the emergency lane; and, the operation of the motor vehicle at a rate of speed lower than the minimum speed limit (the bus driver testifying he entered the highway at “20 m.p.h.” and had reached “30 m.p.h.” at the time of the collision, and an expert having testified that in his opinion it was unsafe to enter the roadway from the shoulder of a controlled access highway at a speed of less than 40 m.p.h.). As all of the above issues of material fact remain for jury determination, I am of the opinion the trial court erred in granting summary judgment based upon the motion for a partial summary judgment which would amount to an interpretation that the law of the case was established as to all issues of negligence “except the allegation regarding the stopping or standing of the bus on the paved shoulder.” This was in no wise our ruling in the case sub judice which became the law of the case.
I, therefore, respectfully dissent.