CONCURRING OPINION
By BARNES, J.I concur in the judgment, not only under the substantial justice rule but generally. In other words, I think the judgment should be sustained.
In my judgment the trial court was correct in not charging as requested by defendant, the assured clear distance rule as provided under §12603 GC.
To have invoked this provision of the Code in the court’s charge, would have rendered necessary so many exceptions, variations and conditions as to render it, in the final analysis, nothing more than the exercise of ordinary care, by the plaintiff. In my judgment the court fully and adequately included this element in his charge on contributory negligence.
The assured clear distance ahead provision of the Code should not be construed Do include within its scope a situation such as the uncontradicted evidence discloses in the instant case. The plaintiff, in the operation of his automobile, should not be required to anticipate that a vehicle travel-ling in an opposite direction would suddenly and unexpectedly turn into his path, Neither would he be required to anticipate that when the driver of the bus attempted to pull back to his own side of the road, that the bus would skid on to plaintiff's side of the road. Until he actually saw, or should have seen, the car skidding on to his side of the road, he could properly anticipate that the bus would return to his line of travel with safety.
After he saw, or should have seen, the car skidding on to his side of the road, then he was charged with the exercise of ordinary care for his own safety. When this imminent danger presented itself through the skidding of the car, it can not be said as a matter of law that he must stop his car within the assured clear distance ahead. Another element necessary to be considered is that the bus was at all times moving towards him, and by this movement the distance was lessened.
The fact that the plaintiff saw the bus approaching 200 yards, 200 feet, or 75 feet beyond him on its own right side of the road would not invoke the assured clear distance ahead provision of the Code. Until the bus skidded into his path, his assured clear distance ahead was unlimited. So far as the evidence discloses there was no other traffic on his side of the road,’ Until the bus skidded into his line of travel, there was no situation requiring him to stop within the assured clear distance ahead. At this instant, taken in connection with the further fact that the bus was continuing to move towards the plaintiff, the two vehicles were too close together for the court to say to the jury that he must then have been operating his car so as to have stopped it within the assured clear distance ahead.
He was required to exercise ordinary care to avoid impending danger, and the trial court in substance so charged the jury.