On Rehearing
O’CONNELL, J.The defendant has petitioned for a rehearing, alleging that our former decision was in error in several particulars.
It is argued that we erred in deciding that *21Ordinance No. 75607, requiring buses to park as close to the curb as practicable was applicable for the protection of the plaintiff. In our former opinion we said that the ordinance in question was designed not only to protect bus passengers but also vehicular traffic using the street, clearly implying that the violation of the statute would constitute negligence per se. It was not necessary for us to pass on the applicability of the ordinance because the defendant failed to take an exception to the instructions relating to the ordinance and made reference to it only by implication in a requested instruction which was refused. The requested instruction, the rejection of which is assigned as error, read as follows:
“You will disregard plaintiff’s claim that the defendant, Portland Traction Company, was negligent in that the operator of said motor bus failed to pull to the right hand curb of said Southwest Sixth Avenue to take on and discharge passengers on the ground and for the reason that there is no evidence to support this claim and for the further reason that it affirmatively appears from the evidence in this case that the motor bus was pulled to the right as far as possible under the circumstances then existing.”
The refusal to give this instruction does not permit defendant to attack the trial court’s instruction to the effect that the violation of the ordinance would constitute negligence per se. The instruction requested simply tells the jury that there was no evidence to support the claim that defendant’s servant was negligent in failing to pull up to the right hand curb to take on and discharge passengers. The instruction makes no mention of the ordinance and is applicable, if appropriate, to the breach of a common law duty. In short, the requested instruction did no more than state that there was no evidence of negli*22gence in the movement of the bns toward the curb. As we shall point out later, there was such evidence.
The defendant claims that error was committed in holding that the jury could find that the stopping of the bus in violation of the city ordinance was the proximate cause of the plaintiff’s injury. We held that the jury could find that the combined negligence of both drivers caused the accident. The defendant contends that there is no evidence to connect the violation of the ordinance with the plaintiff’s injury. We may concede this and yet defendant is not aided in this case. We would be presented with the same problem whether the sudden stopping of the bus or its turning toward the curb was or was not a violation of the ordinance. The question is whether there is evidence from which the jury could conclude that defendant’s servant was negligent and whether that negligence was a substantial factor in producing the injury.
Bessie Bose, the plaintiff’s host, testified that “the bus stopped so quick I just didn’t have time to stop quick enough, just stopped too quick right in front of me,” and “I didn’t have any knowledge of it [the bus] stopping until it was just stopped right in front of me, you see, and I had to apply my brakes there. I already had my foot on the brake and was going moderately.” She said essentially the same thing in other testimony given by her. Both plaintiff and Bessie Bose stated that they did not see the bus driver give a signal to stop or turn. This was not merely negative testimony as evidenced by the following testimony of Bessie Bose:
“Q. Were you looking for any signal by the operator of the bus?
“A. Tes, yes, I was, because I knew they had stop stands on the corner, you know.”
*23There was also evidence that the bus driver did not exercise sufficient care to determine whether he could stop with safety. He testified as follows:
“Q. Just prior to starting to make the stop, did you observe any traffic to the rear?
“A. No.
“Q. Do you have facilities on the bus for that purpose ?
“A. Yes.
“Q. It’s a rear view mirror, is it?
“A. Yes, it is.
“Q. Do you remember whether you looked in that mirror to see if you had any traffic follow-you?
“A. I don’t remember that.
“Q. You don’t remember doing that?
“A. No.”
The defendant argues that the foregoing evidence, together with the other evidence presented on behalf of plaintiff, must be considered in light of the physical facts which, defendant maintains, clearly shows that the conduct of defendant’s servant could not have constituted a legal cause of injury. This is arrived at by the following calculation. The car was proceeding approximately fifty feet behind the bus at a speed not exceeding 25 miles per hour. Plaintiff said, “Bessie put your brake on” to which Bessie replied, “I have my foot on the brake.” The driver “mashed it down a little harder” and then the impact occurred. Defendant relies on ORS 483.444 for the computation that a car travelling 25 miles per hour with proper brakes should be able to stop in a distance of 58 feet. At 25 miles per hour a car moves approximately 36 feet in one second. According to Bessie Rose, her speed at the moment of impact could not have been over 20 miles per hour. Thus, *24it is argued, the evidence clearly shows that Bessie could have stopped her car within the time during which the discussion between her and plaintiff took place, if her brakes were not defective. It is asserted, therefore, that the lack of proper brakes was the sole proximate cause of the injury. These calculations are based upon the assumption that at the time the following ear was fifty feet from the bus Bessie Bose knew, or had reason to know, that the bus driver intended to stop. If the jury believed that she had no warning that the bus driver intended to stop at the corner, they could have concluded that it was reasonable for her not to apply her brakes earlier than she did. As we said in our former opinion, “It is conceivable that had the warning been given, which plaintiff claims, Bessie Bose would have slowed down so that the movement would have safely occurred.”
We think that the evidence from which an inference of defendant’s negligence can be drawn is weak but we are not prepared to say that a reasonable jury could not draw the inference.
Subject to the modification with respect to the applicability of the ordinance, we adhere to our former opinion.