concurring in result: I cannot agree that plaintiff’s prayers for instruction Nos. 1 and 2 constitute a peremptory instruction against the defendants and in favor of the plaintiff. When the facts are admitted or established the court must say whether negligence does or does not exist. “This rule extends and applies not only to the question of negligent breach of duty, but also to the feature of proximate cause.” Hicks v. Mfg. Co., 138 N. C., 319; Russell v. R. R., 118 N. C., 1098; Lineberry v. R. R., 187 N. C., 786, 123 S. E., 1; Clinard v. Elec *332tric Co., 192 N. C., 736, 136 S. E., 1; Murray v. R. R., post, 392. Speaking to tbe subject in Lineberry v. R. R., supra, Clarlcson, J., said: “It is well settled that where tbe facts are all admitted (or established) and only one inference may be drawn from them, the court will declare whether an act was the proximate cause of the injury or not.”
On this record the collision was caused by reason of the fact that either one or the other vehicle was being operated on its left-hand side of the road. This seems to he admitted. The plaintiff simply prayed the court to instruct the jury that if it found that plaintiff’s contention that the defendant’s automobile was being operated on its left-hand side of the road was established by the evidence then that constituted negligence, as a matter of law, and was the proximate cause of the collision. No other conclusion was reasonable. Burke v. Coach Co., 198 N. C., 8, 150 S. E., 636; Butner v. Spease, 217 N. C., 82. The prayers for instruction left to the jury the finding of fact upon which they were to apply the law. They not only do not constitute a peremptory instruction but are correct statements of law as applied to the evidence in this case.
I am not inadvertent to what was said in the opinion in Groome v. Davis, 215 N. C., 510, 2 S. E. (2d), 771. In that case the Court was dealing with the statutory rights of motorists who approach an intersection at right angles to each other. I do not now challenge the correctness of that opinion as applied to the facts of that record. But, it must not be understood that what was there said constitutes a general statement of the law applicable in all cases. At intersections neither motorist has an unqualified right to any part of the intersection because both must use it. But when motorists are approaching and passing each other on an improved, unobstructed highway, each has a right to his half of the road and neither has a right to encroach upon the line of trafile of the other. Ch. 407, Public Laws 1937, secs. 108 and 112; Shirley v. Ayers, 201 N. C., 51, 158 S. E., 840.
Nor can I agree that plaintiff’s prayer for instruction No. 3 was substantially given in the general charge. This prayer was materially and erroneously modified by the court. When the doctrine of last clear chance is not pleaded and the evidence is not such as to invoke its application the right of a motorist who is driving on his right-hand side of the road to assume that the operator of a motor vehicle approaching from the opposite direction will seasonably turn to its right-hand side of the highway so as to pass in safety is not limited to those who are strictly and scrupulously driving within the statutory speed limit. Circumstances which would limit or restrict this right may arise. But, ordinarily, the right to so assume is the right of every motorist. Shirley v. Ayers, supra; Guthrie v. Gocking, 214 N. C., 513, 199 S. E., 707; *333Burke v. Coach Co., supra. See also Bowen v. Schnibben, 184 N. C., 248, 114 S. E., 170. The action of the court in conditioning plaintiff’s right to so assume upon the finding that the driver of the bus “was driving in a lawful manner” was error.
To make a practical application of the instruction as modified by the court: if the bus driver was on his right-hand side of the highway and was proceeding at a rate of speed of less than 45 miles per hour, he had a right to assume that Freeman would stay on his own side of the highway ; but, if the bus driver was going at a rate of 46 miles per hour or more, he did not have the right to act on such assumption. This is not the law as written in the statute. Oh. 407, Public Laws 1937, sees. 108, 110 and 112.
Assignments of error Nos. 12, 13, 14 are not mentioned or discussed in the majority opinion. These assignments are directed to the action of the court in instructing the jury in respect to the alleged negligence of the plaintiff and applying the law in respect thereto to the first issue. The first issue was directed only to the question of the negligence of the defendant. These instructions placed upon the plaintiff the burden of showing that its driver was not negligent. This placed an undue burden on the plaintiff, tended to confuse and was error. Lea v. Uiilities Co., 178 N. C., 509, 101 S. E., 19; Ogle v. Gibson, 214 N. C., 127, 198 S. E., 598. This is particularly true in view of the fact that contributory negligence of plaintiff was not pleaded.
Notwithstanding the errors above indicated, I am compelled to the view that the judgment below should be affirmed. In the final analysis the issue of fact on the question of negligence was simple. Which vehicle was being operated on its left-hand side of the highway? When the court came to apply the law to the facts in the case, as required by C. S., 564, it disregarded its former abstract definitions of the law and its references to immaterial provisions in the Automobile Law and simply, clearly and directly explained and applied the law on the one real fact at issue. Under those instructions the jury has found that plaintiff’s bus, and not Freeman’s automobile, was being operated on its left-hand side of the highway. This being true, it was the proximate cause of the collision. Certainly the jury was justified in so finding. Therefore, the indicated error was not sufficiently prejudicial to require a new trial.
Stacy, C. J., and WihboeNE, J., join in this opinion.