dissenting: It is conceded in the main opinion that the driver of defendant’s bus was proximately negligent. No other conclusion could be reached upon the evidence that he stopped the bus suddenly to let off a passenger almost midway between his regular stops, without knowing or attempting to find out whether or not he was followed by any other motor vehicle. The main opinion, however, finds the driver of the plaintiff’s lumber truck guilty of contributory negligence for two reasons: (1) Because the evidence of the defendant is taken to show that the lumber truck knocked the passenger bus forward about 24 feet, which is held to be conclusive evidence that the truck was going at a *694dangerous and unsafe rate of travel; and (2), because tbe driver of tbe truck could not stop bis car by tbe application of bis brakes in tbe 20 feet wbicb be testified separated bis truck from tbe passenger bus.
1. Tbe reason first assigned, as far as I am able to discover, tops tbe record for going into tbe defendant’s evidence and not only considering it, but balancing it against tbe contradictory evidence of tbe plaintiff upon a demurrer to tbe evidence.
Tbe plaintiff’s driver stated positively that be was trailing tbe bus at a distance of at least 20 feet, and was traveling not more than 20 miles per bour. There is nothing in tbe plaintiff’s evidence to tbe effect that tbe bus was knocked forward 24 or 25 feet by tbe collision. This does occur, however, in defendant’s evidence in the testimony of tbe driver of tbe passenger bus, R., p 30: “Tbe bus was knocked about 25 feet— about tbe length of it.” And in tbe testimony of W. T. Duncan, supervisor of buses for tbe defendant, who arrived after tbe collision, we find : “I observed tbe street and there was dirt on the street behind tbe truck. I saw some dirt at tbe back of tbe truck. This dirt was about 24 feet behind where tbe bus was standing.” R., p. 33. That is all.
Upon this evidence tbe main opinion tabes for true tbe statement of defendant’s witnesses, balances it against that of tbe plaintiff, and discounts tbe plaintiff’s driver’s statement that be was traveling only 20 miles an bour by characterizing it as opinion evidence.
Tbe plaintiff’s evidence is not here confronted by any admitted or undisputed or explanatory fact; it is not confronted by an inescapable physical fact wbicb should dominate tbe finding; indeed, it is not confronted by any fact at all' — only by a supposed or assumed or inferred fact, gotten from an examination of tbe defendant’s evidence and given credence and weight by tbe same comparative processes that we have ordinarily considered tbe exclusive function of tbe jury.
I can see no occasion for setting up, as categories, a summary of recent instances in which tbe evidence of tbe defendant has been called upon to aid bis demurrer. They establish no distinguishing or limiting principle, and make no promise that other categories will not be provided as occasion arises. They stem from tbe same fundamental error — the assumption by tbe court of tbe power to pass upon the credibility of defendant’s evidence and accept it as true and to pass upon its weight and significance and give it effect. Once we have discarded those restrictions on our powers, emanating as they do from tbe Constitution and tbe statute respecting appeals to this Court, and wbicb have been until recently sacredly observed, there is no limit to wbicb tbe Court may not go. However catalogued, these cases merely must be considered in terms of tbe absorption by tbe Court of tbe jury function.
*6952. Again, the plaintiff’s evidence, taken in the light most favorable to the plaintiff, tends to show that the driver of the truck was proceeding along one of the principal streets of the city of Asheville, not exceeding 20 miles per hour ;■ that the passenger bus immediately in front of him suddenly stopped without warning; that he “slammed on his brakes” as quickly as he could, turning to the left, but could not wholly avoid the collision. He is held here for contributory negligence per se upon the ground that he ought to have trailed the passenger bus at such a distance as would enable him to apply his brakes and stop before the collision.
At one time the law fixed the minimum distance at which one motor vehicle might follow another. The rule was impractical and was repealed. The distance to be observed is now merely a matter of ordinary care and prudence. Smith v. Coach Co., infra. A reference to the motor vehicle law, G-. S., 20-124, will show the requirements with regard to brakes and stoppage of ears. The standard set up in the main opinion is wholly inconsistent with any possible application of that section to the exigencies of traffic. If the rule were adopted, it would be impractical for observance in lanes of traffic through Asheville or any other sizable city in the State, over routes which trucks are permitted to travel and at speeds well within the law.
Moreover, this rule would require the driver of the following motor vehicle to completely anticipate the negligence of the driver of the leading car — to be so circumspect as to avoid it. The rule applied to him is not that of the ordinarily prudent man; it makes him an insurer against a negligence which no rule of ordinary care requires him to anticipate. It gives indemnity to a kind of negligence which figures high in the statistics of urban casualties.
In a ease of this kind, hardly any truth which we seek is so obvious or lies so near the surface. Almost invariably, it is caught in a web of circumstances, which must be untangled by the separation and correlation of many factors. Cole v. Koonce, 214 N. 0., 188, 198 S. E., 63?. Upon this point, I do not believe that this Court is justified in taking a case away from the jury where the factors of decision are so numerous as to require estimates, comparisons, and co-ordination, whether of time, distance, or other accompanying circumstances, in order to reach the result. As to these, it is contemplated that reasonable minds may come to different conclusions. That is why such matters are left to the unanimous verdict of twelve men rather than the decision of a divided •Court. The reasoning and result reached in Smith v. Coach Co., 214 N. 0., 314, 199 S. E., 90, and Holland v. Strader, 216 N. 0., 436, 5 S. E. (2d), 311, should be determinative of the present case.
ScheNCK, J., concurs in this opinion.