The statement in the majority opinion of the court as to the pleadings and physical facts surrounding the place of the accident is correct. However, I do not concur with the majority opinion as to the evidence regarding the conduct of the parties, nor the legal consequences of their conduct.
All the acts of negligence charged in plaintiff’s complaint must, of necessity, be predicated upon a fact that appellant’s bus driver saw, or in the exercise of reasonable care should have seen, the appellee in sufficient time to have (1) sounded his horn, or (2) stopped the bus and thus avoided the collision.
According to the uncontradicted evidence of numerous witnesses, the collision occurred from two to four feet in the street north of the curb. All the witnesses, except one, testified that at this point appellee “stepped,” “hurried,” “ran” two or three steps north or northeast off the curb “in the vicinity of the fruit store or shoe store” (which were toward the west end of the loading zone).
It is contended that from this point appellant then walked to a point about midway between the west and east ends of the loading zone, where she was struck from the rear. There is no direct evidence to this effect, and I can find no evidence upon which, reasonable men could support such an inference.
According to the uncontradicted evidence, after being struck appellee fell in the street near the bus at a point between the fruit store and the shoe store. All the witnesses, except appellee and a Genevieve DeCamp, testified that the collision occurred at that point immediately after she took two or three “hurried” steps from the curb, directly into the path of the bus.
*404The testimony of neither the appellee herself, nor of Genevieve DeCamp supports the contention that appellee was'walking in the street away from appellant’s bus for a sufficient period of time for the driver to have seen her and stopped the bus. The testimony of appellee in this regard is as' follows:
“Q. Do you have any .idea how long you were out in the street before you were struck?”
“A. No, I haven’t.”
“Q. Dp you know whether it was a matter of seconds or minutes?”
“A. No.”
“Q. You haven’t any idea how far you had walked, either in the street or east on the street?”
“A. No.”
The allegation of appellant’s own complaint on this point is “That after the plaintiff had proceeded approximately two feet into the street she was struck.”
. Neither does. the confused testimony of Genevieve DeCamp support the above contention, except that appellee was struck in the back. Her testimony as to location and events .of the collision is as follows:
“We were probably just about in the middle of the loading zone, standing on the sidewalk near the curb. There is a shoe store there and a fruit stand, on the corner. We were standing just about the area between the shoe store and the fruit mart (which was toward the west part of the loading zone). She (appellee) seemed to be walking toward the south . . . she took two or three steps.”
Appellant’s contention that appellee walked eastward in the street a considerable distance and that while so walking 'appellant’s bus ran her down and struck her in the back presumably rests on the testimony of the witness DeCamp. However, her testimony in fact contra-*405diets such a contention. Her testimony was that when appellee turned her back on the bus “almost at that particular instant . . . she turned and started walking east. . . and as she did that the bus knocked her down.” There is no other evidence that appellee had her back toward the bus at any time or for any other period of time.
It is further contended that the testimony of appellant’s own bus driver is evidence of negligence; that the driver stated on the one hand that the bus was traveling one or two miles an hour and could stop in less than a foot; that nevertheless, after he saw the appellee in the street going northeast two or three feet from the curb and four or five feet from the most easterly part of the bus, he did not stop the bus in time to avoid hitting her. The fallacy of such a contention seems apparent. It is a matter of common knowledge that response to normal reflexes are not instantaneous and that the bus could reasonably be expected to travel the distance of approximately four feet before the brake could be applied and the bus stopped in less than a foot thereafter. It occurs to me that the contention is wholly without foundation. I find no evidence of probative value before the jury to support the burden of proving the negligence alleged.
It is contended by appellant that under the record herein appellee was guilty of contributory negligence as a matter of law; that appellee violated the provisions of §47-2035(b), Burns’ 1940 Replacement (1951 Supp.), which provides as follows:
“Where sidewalks are provided it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway.”
Appellee argues: (1) The case was not tried below on the theory of the statute; (2) the statute is not *406applicable to the facts, and (3) even though applicable, appellant’s- alleged negligence was the sole proximate cause of the injury, and appellee’s violation did not contribute.
First of all, the statute is not a theory but a law applicable to the facts in issue. The theory of the complaint is negligence. That is the only theory upon which the case was tried. Appellant’s answer put in issue the alleged negligence of its driver and the contributory negligence of appellee. It was not necessary to plead the statute. The court takes judicial notice of that. The facts pleaded in the complaint and answer show that appellee walked or ran into the street from an adjacent sidewalk in downtown Hammond, and was in the street at a point other than an intersection or crosswalk at the time of the accident. The motion for a directed verdict, which necessarily preceded the tendering of instructions, presented an issue of law on the sufficiency of the evidence and contributory negligence under all applicable law, both common law and statutory. This was assigned as one of the grounds for new trial.
Upon the issue of contributory negligence, appellee contends that the above statute is not within the class of statutes creating negligence per se. No authority is cited supporting appellee’s contention. Clearly the statute was enacted to provide for the safe and orderly use of streets so as to protect not only pedestrians but the operators of vehicles as well. The purpose and character of the act seems to make it analogous to §47-2033(a), Burns’ 1940 Replacement, which has been considered as establishing negligence per se on the part of a pedestrian who crosses a street other than at established places of crossing. See Vogel v. Ridens (1942), 112 Ind. App. 493, 44 N. E. 2d 238.
*407Secondly, the statute seems plainly applicable to the facts. All the witnesses testified that appellee “walked” two or three steps in the street and started walking east toward her bus. Clearly under all the evidence appellee was walking “where sidewalks are provided, along and upon an adjacent roadway,” as expressly prohibited by the statute. Such a violation of the use of the roadway is negligence per se, unless Excusable (1) because of circumstances resulting from causes or things beyond her control and in no way produced by her own negligence, or (2) that her conduct came within an excuse or exception specifically provided in the statute itself. As stated in the recent case of Larkins v. Kohlmeyer (1951), 229 Ind. 391, 400, 98 N. E. 2d 896, the law on the subject of negligence per se was stated by the Honorable Floyd S. Draper of the Indiana Supreme Court as follows :
“Thus it may be said that where one has violated the provisions of a statute or ordinance in the operation of an automobile on a public highway, he is guilty of negligence as a matter of law unless the evidence discloses that compliance was impossible or non-compliance was excusable because of circumstances resulting from causes or things beyond his control, and in no way produced by his own negligence, or his conduct comes within an excuse or exception specifically provided in the statute itself
Appellee argues as excuse for non-compliance that, appellee was walking in the street within a loading zone with the “intention” of boarding a public bus. Appellee was not boarding a bus at the time she entered the street and was struck. Her own testimony is: “I saw the bus at the far.end of the loading zone ... I know it was quite a ways down. It was quite a ways east of me. . . . I then stepped into the street in the vicinity of the *408fruit store or shoe store and started walking toward the bus.” If appellee had been in the act of boarding a bus in a loading zone at the time she was struck, the circumstance would have presented a question of fact to be considered by the jury as an “excuse” for the violation of the statute. We do not have that factual situation before us. There being no evidence of an excuse for non-compliance, there was no question before the jury on this issue to be determined and appellee must be considered to have failed to overcome the presumption of contributory negligence imposed upon her by the statute.
On the subject of contributory negligence, it is further contended by appellee that the issue of proximate cause was a question for the jury to determine and that it must be considered under the verdict of the jury that the jury found for the appellee and against the appellant on this issue. Appellant has cited the case of Shown v. Taylor (1950), 120 Ind. App. 154, 160, 88 N. E. 2d 783, wherein it is said:
“Contributory negligence is ordinarily a question of fact for the jury, and it is only where the controlling facts are not in dispute, and upon which facts reasonable men can reach but one conclusion, that such question becomes one of law for the court.”
Appellee has also cited the case of Vogel v. Ridens, supra, as supporting the above contention. In this case the court stated:
“Assuming, without deciding, that appellee was crossing the street under circumstances which required him to yield the right of way to vehicles, as contemplated by the statute referred to, yet there is evidence positively disclosing that appellant was operating his automobile at an excessive rate of speed in violation of law, and hence the ques*409tion of which negligent violation of law, if either, was the proximate cause of the injury would be for the jury to determine. In such case, both parties would be guilty of negligence per se, but the liability therefor depends upon whether the negligence of either or both proximately contributed to the injuries sustained. Contributory negligence such as defeats recovery must be such as proximately contributes to the injury complained of. Davis v. Dondanville (1940), 107 Ind. App. 665, 26 N. E. 2d 568; Cousins v. Glassburn (1940), 216 Ind. 431, 24 N. E. 2d 1013. The pedestrian statute referred to cannot be said to create such a right of way in a motorist over a pedestrian in all cases as to operate to relieve him from liability where his negligent, operation of his automobile is the sole proximate cause of an injury to a pedestrian. It is also to be observed that appellee had a right to assume that appellant would use ordinary care to avoid injuring him. Tonges v. Walter (1941), 109 Ind. App. 41, 32 N. E. 2d 95; Pfisterer v. Key (1941), 218 Ind. 521, 33 N. E. 2d 330. Under the state of the-record before us, the question of negligence and contributory negligence, if any, which proximately contributed to the injuries of appellee was properly submitted to the jury to determine from the conflicting evidence as to speed and distances involved. The jury, by its verdict, found in effect that appellant’s negligence was the proximate cause of the injuries, and that appellee’s negligence, if any, did not contribute thereto. It is our opinion that the facts disclosed are such that different conclusions might be drawn by prudent persons as to the cause of the injuries, and hence the question of proximate cause was for the jury to determine. Continental Casualty Co. v. Lloyd (1905), 165 Ind. 52, 73 N. E. 824; Vandalia R. Co. v. Kendall (1918), 68 Ind. App. 1, 119 N. E. 816. The jury having decided that issue against appellant, its conclusion cannot be disturbed. Kloplovitz v. Jensen (1926), 197 Ind. 475, 151 N. E. 390.”
There is a marked contrast in the facts in the above cited case and the facts in the case at bar. In the above case a pedestrian crossed the street in the center *410of the block and was considered by the court as being guilty of negligence per se. The driver of the car was driving at a speed of 60 miles an hour in a hospital zone in the city of Evansville and was also treated as guilty of negligence per se. The pedestrian had crossed to within one or two feet of the opposite curb when he was struck. The court in effect held that, under the above facts, the jury may have properly considered that the negligence of the driver was the sole proximate cause of the injury.
In the case at bar there was no evidence of speed or any other conduct on the part of appellant’s bus driver which could have caused the appellee to have misjudged her position of peril or to have been the sole proximate cause of her injury.
I find no evidence in the record upon which to support an excuse for appellee’s violation of the statute. Nor do I find any evidence upon which the jury might consider that negligence of the bus driver was the sole proximate cause of the injury. In my opinion, therefore, the appellee is guilty of negligence per se, unexcused, and that, therefore, the judgment in the case should be reversed and a new trial ordered.
Note. — Reported in 103 N. E. 2d 460.