CONCURRING OPINION
By CARTER, J.I desire to make my position clear in this case. First, it is my view that the part of the charge of the court wherein the assured clear distance provision of the statute was given was not erroneous in the light of the facts and evidence in the case. The lane in which the defendant was traveling was a lane used exclusively for south bound traffic. The evidence discloses that immediately prior to the collision she was driving down the center of the lane. The plaintiff and the driver of the car in which he was riding testified that she was driving at the rate of forty to forty-five miles per hour as she approached this intersection. It is conceded that the place where this collision occurred was not in that part of the city designated a closely built up portion thereof, and if she was proceeding at such a rate of speed as testified to by plaintiff, and also as testified to by the driver of the car in which plaintiff was riding, she was at the time operating her car prima facie unlawfully. However, assuming she was driving at a rate of speed as testified' to by the defendant, to-wit, twenty-five to thirty miles an hour, such might have been unlawful under all the circumstances in the case, taking into consideration' the surrounding conditions, circumstances and facts as disclosed by the evidence. In either event it was a factual question for the jury to determine as to whether the defendant was approaching the intersection lawfully or unlawfully, and if she approached this intersection unlawfully she thereupon lost her preferential right of way and the common law rule would prevail, to-wit, the one who reached the intersection first would have the right to proceed. However, each, in such event, would be required to exercise ordinary care, and there can be no question from the evidence in the case that the plaintiff and the driver of the car in which he was riding reached the intersection first, and the jury could have very properly found under the evidence that defendant approached the intersection in an unlawful manner and therefore lost her preferential right. If so, all that has been said and cases cited relating to the assured clear distance statute have no application where one has the right of way under the statute; if defendant was approaching the intersection unlawfully she had no right of way. Was the court in error when he charged the assured clear distance statute? I think not. This was a one way traffic lane, as hereinbefore indicated, and according to the testimony of plaintiff and the driver of the car in which plaintiff was riding, the driver drove out about four feet into the traffic lane on which defendant was approaching and stopped his car in that position, saw her approaching some 250 to 3u0 feet distant, and then proceeded to cross. Certainiy, if such was the case, defendant did not have an assured clear distance ahead as the car was on the lane of traffic the moment the car in which plaintiff was riding entered the lane and was in her lane of traffic until struck by defendant’s car. Of course, if defendant was approaching the intersection in a lawful manner, she then had a right to proceed, and if the driver of the car in which plaintiff was riding darted out suddenly and unexpectedly, as defendant claims, then it is my opinion that the assured clear distance statute has no application and comes within those classes of cases wherein there was a legal excuse for not being able to stop in conformity with the statute, the burden of proof in such cases being upon the one claiming the existence of a legal excuse in exoneration of a violation thereof.
We must bear in mind that there are two sides to this law suit, not one only, and the court should give the law applicable to not only one of the contentions made in the case, but the law applicable to the contentions of both plaintiff and defendant. It is my opinion that there was no error in the court charging the assured clear distance ahead statute.
Relative to insufficiency of the charge, it is true that the court could have more clearly defined the issues, as urged by Judge Bennett in his opinion. However, these *95were sins of omission and not commission, and counsel should have requested a further clarification, if desired. This is' the rule of this state and requires no citation of authorities.
There was no error wherein the court charged §12603-1 GC must be established for its violation by the greater weight of the evidence and a violation thereof is negligence. Certainly this was a correct statement of the law; certainly the failure to exercise ordinary care is negligence. However, I agree with my associate, Judge Nichols, that the court was in error when he charged that the ihivers of both vehicles upon the highway had equal rights, provided they both exercised ordinary care and obeyed the law of the road. Of course the court did not say that such was the case at this intersection, but I am of opinion that the jury would so construe same. S|ich is not the law of this state. Their rights were not equal if both exercised ordinary care and obeyed the law of the road. We have in this state the right of way statutes, where the one having the right of way has the right to proceed uninterruptedly in a lawful manner in the direction in which he is moving in preference to another vehicle approaching from a different direction in his path. Surely under this section, if the defendant was approaching the intersection lawfully or in a lawful manner, the right of the other party was not equal to the right of the defendant to proceed. In my opinion this statement was misleading and prejudicially erroneous, and for this reason, while not argued by counsel for appellant, it was nevertheless in my judgment misleading, and for this reason I am content that the cause be reversed and a new trial had. I therefore concur in the reversal for this reason.