dissenting.
It seems to me, in this case, it must be conceded that the driver of the truck was negligent. The liability of the defendant, however, turns primarily upon whether or not the driver of the bus was also guilty of negligence, and whether his negligence was a proximate cause of the injury. The defendant’s negligence cannot be presumed, but it must be proved by a preponderance of the evidence.
The majority opinion concedes that the driver of the bus acted in a sudden emergency, but holds that the emergency was created by his negligence. To establish this negligence, reliance is placed upon an alleged excessive rate of speed, constituting a failure to proceed cautiously under the conditions and circumstances existing upon the roadway, at or near the place of the collision.
When we consider the evidence, we find that none of the witnesses for the plaintiff could, or did, give more than a guess as to the rate of speed. None of them were looking at a speedometer, nor had they any occasion to check *235the speed otherwise. Their estimates of the speed varied from thirty-five to forty-five miles an hour. They did not even pretend to have any accurate knowledge, or means of knowledge. All such evidence was merely a guess, and of a negative character. On the other hand,, the bus driver, with thirteen years of experience in driving, testified positively that he was keeping a careful lookout, and was not driving over twenty miles an hour. This was further verified by the operator of another bus behind the truck, proceeding in the same direction. The evidence of these two witnesses is the only real evidence of the speed the bus was making, and there is no conflict therewith.
The day of the collision was clear and bright. As the bus traveled on a main State highway, with a sixteen-foot paved surface, it approached a bridge one hundred and forty feet long, with a driving space of fifteen feet between the two sides of the bridge. On the west side of the bridge from which the bus came, there is an approach of about eight hundred feet of straight road, with nothing to obstruct one’s vision, until the grade for the elevation of a railroad track is reached. The grade on this approach runs downward 2%, and then upwards 1.8%, until the abutment of the bridge is met. It then proceeds upward at a 5% grade for thirty or forty feet to the highest elevation of the bridge, then level across the bridge, and then 8.5% down grade going east. The bus driver was unable, on account of these upward and downward grades on the highway to the bridge, to see a vehicle approaching from the opposite direction, until he was about ready to enter on the bridge. When he saw the approaching car, believing it would be dangerous for both to attempt to pass on the bridge, he immediately applied his brakes, and brought the bus to a sudden stop, thereby exhibiting his complete control of his vehicle. The bus was equipped with air-brakes, and was eight feet, two inches wide, and thirty-two feet long. A passenger on the bus thought that he saw the oncoming vehicle a few seconds prior to the application of the brakes, but these few seconds evidently constituted the *236appreciable period existing between the application of the brakes, and the time when the bus driver also saw the oncoming vehicle. The collision occurred so immediately that this passenger was not sure whether the sudden stopping of the bus, or the impact of the collision, threw him forward rather violently in his seat.
The driver of the truck, occupied by the plaintiff, stated that he was driving about one hundred and fifty feet behind the bus, prior to reaching the bridge, and that he estimates, or guesses, that he was running around forty miles an hour. He testifies that he didn’t see any signal, but further admits, “I don’t know that I was particularly noticing the bus as it stopped. It must have made a rather sudden stop.” He then says that when he realized it was going to stop, or had stopped, he was within fifty feet, or more, from it, and then applied his- brakes. The evidence of witnesses for both parties shows that almost as quickly as the bus stopped, the truck crashed into its rear. There is ample, positive evidence that the bus was equipped with proper stop signal devices, both before and after the collision, which were displayed automatically upon the application of the brakes, and the testimony of the truck driver shows that he was not paying any attention to the operation of the bus.
It seems inconceivable that, if the bus and the truck were each proceeding at the rate of forty miles per hour, or if the bus was going even faster, the driver of a car one hundred and fifty feet behind, could fail to promptly see, if he were looking, the huge passenger bus when it came to a sudden stop, whether the stop lights were burning or not.
The rate of speed of the bus had nothing whatever to do with the ability of its driver to see the approaching car. That was dependent upon his arrival at a certain place on the grade near the entrance to the bridge. His air-brakes would have stopped the bus more suddenly at a smaller rate of speed than at a higher rate. The fact that the truck in the rear was within the two hundred feet prohibited by statute, required the exercise of a higher vigilance by the *237truck driver. The bus driver had a right to assume that the truck driver was observing the law.. The bus driver could not safely, under the sudden emergency, take time to ascertain the closeness of the truck following, and, at the same time, properly exercise his duty in view of the approaching automobile. No matter what may have been the speed of the bus, it was evident the speed of the oncoming truck, its closeness to the bus, or the failure of its driver to keep a proper lookout, brought on the collision.
How can it be said that the driver of the bus was guilty of negligence, under the circumstances herein? He was observing all traffic laws both as to speed and as to keeping a careful lookout. He saw an approaching car as early as it could be seen, and brought his bus to an immediate stop. During all of the time, he had the bus under complete control. On the other hand, the truck was traveling as fast, if not faster than the bus, and within a distance in the rear prohibited by the traffic statutes. The truck driver approached one hundred feet closer to the rear without noticing that the bus was being brought to a stop, and after he observed such action, continued the remaining fifty feet further on into the rear of the bus. The collision was a natural and probable consequence of the conduct of the truck driver, and not a natural and probable consequence of the stopping of the bus. The stopping of the bus was merely incidental to the negligent action of the truck driver. The negligence of the latter was not only the last negligent act contributing to the injury, but it constituted the cause without which the collision would not have occurred.
The record contains considerable other evidence favorable to the contentions of the defendant, but being in conflict, we may disregard it under the jury’s verdict, and still reach the same conclusion herein.
The case comes to us with a judgment disapproved by the trial judge. While it is not as conclusive as one affirmed, yet the fact that the trial judge saw, and heard all of the witnesses testify, and formulated his judgment after a consideration of the evidence thus received, demands some *238consideration. While his personal opinion of the weight of the evidence cannot take the place of any relevant or pertinent evidence, it is entitled to some weight, especially when the evidence is merely negative, speculative, or conjectural. In the circumstances of this case, the trial judge enjoyed a real and distinct advantage over this court.
I fully concur in the written opinion of the able and experienced trial judge, who held that there was no evidence that the defendant was negligent, and none that his negligence was the proximate cause of the injury. As he states, in summing up the evidence, “There is no evidence that the bus driver acted differently than any other experienced driver of ordinary prudence would have done.” He correctly concludes that the speed at which the bus was running, was not the cause of the collision; that if the bus driver was negligent at all, his negligence was too remote; and that the proximate cause of the collision was, that the truck was either running too fast, or too close to the bus at the moment of the collision, and that the driver thereof was not keeping a proper lookout, or did not have his truck under control.
Not only has the plaintiff failed to carry the burden of the proof by a preponderance of the evidence; but there is no substantial positive evidence of defendant’s negligence. The evidence relied on to show the negligence of the defendant is purely speculative and conjectural.
It seems rather clear that the natural sympathy of the jury for the unfortunate plaintiff, and their desire to give her some relief, has persuaded them to furnish this relief at the expense of the defendant corporation.
Because the verdict is both contrary to the evidence, and without sufficient evidence to support it, the judgment of the trial court should be affirmed.