¶1dissenting. While of course I recognize the well-established rule that questions of negligence and diligence, including contributory negligence, and whose negligence was the proximate cause of an injury, are questions peculiarly for the determination of the jury, and can not be resolved by the court by demurrer or otherwise except in plain and indisputable cases, it is nevertheless equally well recognized that where the evidence fails to establish negligence on the part of the defendant, and shows that the injury must necessarily have been unavoidable in the exercise of ordinary care so far as the defendant was concerned, the grant of a nonsuit is not erroneous. See Perry v. Macon Street R. Co., 101 Ca. 400 (29 S. E. 304). In my opinion, it is manifest that unless the defendant was guilty of negligence in driving his car, at the time of the accident, slightly to the left of the middle of the street, under the plaintiff’s testimony the defendant should be absolved from blame. Plaintiff’s own testimony and that of his witnesses all go to show, as stated in the majority opinion, that, as he undertook to cross the street between intersections, and emerged from between two parked cars, one a Buick and the other a Ford, with his foot extending just beyond the Buick, he looked to his left, and as he did so was instantly hit by the left side of the defendant’s car approaching from his right side. In addition to the facts narrated in the majority opinion, plaintiff’s testimony and the diagram prepared and introduced in evidence by him show that the street where the accident occurred was only 32 feet wide. Plaintiff’s own car, which was parked parallel to the curb on the opposite side of the street, according to the diagram was situated about 30 or 35 feet, but according to one of plaintiff’s witnesses only about 15 *734feet, south of the scene of the accident, from which direction defendant’s ear was approaching. The diagram shows by its indicated figures that the end of the Buick car projected into the street 13 feet out from the sidewalk. The Ford car was parked south of and alongside the Buick, at the same angle of 45 degrees, together with a.third car of undesignated make to the right of the Ford. Neither the testimony nor the diagram discloses how far this third car projected into the street. One of plaintiff’s witnesses testified that the Ford was about 2 or 3 feet shorter than the Buick. If so, with both cars parked at 45 degrees, the Buick must have projected only about 1 1/2 feet farther into the street than the Ford. Tt appears that plaintiff was struck at a point about 2 or 3 feet from the center of the street, that is to say, practically at the same distance from the sidewalk as the Buick car extended, and not over a foot and a half beyond the distance that the Ford extended.
¶2It is sought to establish negligence on the part of the defendant by reason of the testimony that at'the time of the accident he was driving his car in violation of the “rule of the road,” “astraddle of the center” of the street, so that the left side of the car encroached 2 or 3 feet on the left beyond the center of the street; and because, as contended, under the pleadings and evidence, the defendant in the exercise of ordinary diligence could have avoided the injury by stopping his car. In view of the fact that the act of 1927 (Ga. L. 1927, p. 236), embodied in the Code of 1933, § 68-303 (b) was not in force at the time of the injury, and in the absence of proof of any city ordinance requiring the driver to keep his car within the right-hand portion of the street, and in the absence of any proof that at the time of the accident the defendant was meeting any person driving a vehicle from the opposite direction so as to require him to turn his car to the right, as provided by the acts of 1915 and 1921 (Ga. L. Ex. Sess. 1915, pp. 107, 113; Ga. L. 1921, pp. 255, 257), Michie’s Code, 1770(34), 1770(52)), and in the absence of any proof that the defendant just prior to the injury had not been engaged in, passing another moving vehicle traveling in the same direction, so as to require him, in compliance with the statutes last mentioned, to turn his car “to the left- side of the vehicle overtaken,” and in the absence of any proof that the defendant’s driving of his car “astraddle of the center” of the street was in violation of any universal custom or “rule of the *735road,” it can not be said that the conduct of the defendant in then and there driving his car slightly “astraddle of the center” of the street could be taken to constitute either negligence per se or negligence as a matter of fact. While, as above indicated, no proof as to what constituted the alleged “law of the road” was introduced, it appears to be the general rule that, in the absence of any existing statute or of any proven ordinance to the contrary, “the law of the road does not require a driver to keep to the right in driving along the highway, but applies only to the meeting and passing of traffic.” 29 C. J. 651. The case of Roberts v. Phillips, 35 Ga. App. 743 (134 S. E. 837), was construed as where two automobiles were meeting. Accordingly, since it can not be held that the defendant was negligent merely by reason of the fact that at the time of the accident the left fender of his car projected two or three feet to the left of the center of the road, and since it is shown by the plaintiff’s testimony that he was hit almost instantly just as he emerged from between the two parked cars in attempting to cross the street between intersections, it does not appear from the evidence that the injury was brought about by any failure on the defendant’s part to exercise ordinary caro. I therefore think that the grant of a non-suit was proper.