¶1 (dissenting) — The prevailing opinion never received my concurrence, although I am now reluctant to dissent.
¶2 The decision makes it imperative for a disfavored driver, attempting to surrender the right of way across a street intersection, to surrender the entire portion of the street to the right of center line; and failure to do so, even to the extent of some inches, the exact extent of the projection being in question, as in this case, constitutes contributory negligence, by reason of which the disfavored driver cannot recover, even though the favored driver was also crowding the center line of the intersection.
¶3*449 With such drastic rule I am unable to agree.
¶4 Furthermore, while it is true appellants’ car had the right of way, yet it is equally true that it was being driven at a rate of speed in excess of that there permitted by law. Appellants’ car was being driven within ten or twelve inches of the center line of the street when he had from sixteen to seventeen feet from his right hand side to the curb line. As respondent entered the intersection, he looked to the left, as was his duty, to observe whether any traffic was approaching from the south traveling northward. He was driving at a very moderate rate of speed, well within the statutory rate. When he looked to his right he observed appellants’ car, which was then distant about thirty-five feet and immediately proceeded to bring his ear to a stop, and had completely stopped before the impact or collision occurred, with the front end of his car extending, at the most, seventeen or eighteen inches beyond the center line of the street.
¶5 Appellants’ car struck respondent’s car from six to eight inches back of the extreme front end, thereby showing that it was traveling from ten to twelve inches of the center, so that, had it swerved to the right ten or twelve inches, the accident would have been avoided. The favored driver had ample space, and the exercise of the slightest degree, of care on her part would have avoided the accident.
¶6 Manifestly, under the circumstances, the favored driver should not be permitted to escape liability. There is no escape from the conclusion that the direct and proximate cause of the collision was the reckless negligence of appellants’ driver, and the judgment of the lower court should be affirmed.
¶7 Beeler, J., concurs with Holcomb, J.