¶1(dissenting).
¶2The majority opinion substitutes the judgment of this court for that of the jury in determining the following two factual questions :
(1) Whether the bus driver’s failure to dim his headlights was a causative factor in the accident.
(2) Whether Miller’s handling of his automobile upon being confronted by the “blinding lights” of the bus was negligent.
¶3In adopting the theory that the lights were not a proximate cause because Miller did not have his car under control and was on the wrong side, hence the collision would have occurred anyway, the opinion rejects the possibility (which the jury had a right to find as a fact) that the lights were the cause of the car’s being on the wrong side in the first place.
¶4If the majority viewpoint on the second point were predicated on the theory that there was not enough evidence to show that Miller (who did not live to testify) actually was blinded by the lights, I think it might be sound. But in holding that Miller was contributorily negligent as a matter of law it apparently construes Harris v. Luster, Ky.1953, 259 S.W.2d 489, as meaning that one who loses his bearing on the highway as the result of the negligent failure of an oncoming driver to deflect his lights is necessarily and always negligent. This construction destroys the effect of the statute requiring the dimming of lights. KRS 189.040(5). I believe the Harris case was decided on the basis of a stronger fact situation and was not intended to have such a broad effect.
¶5Under no reasonable theory can I agree that the non-negligent passenger was not entitled to have his case submitted to the jury.