
    [No. 14842.
    Department One.
    December 9, 1918.]
    Anna Paton et al., Respondents, v. Cashmere Warehouse & Storage Company et al., Appellants.
    
    Highways (53, 57) — Use for Travel — Negligence—Meetings— Turning to Deft. Under Rem. Code, § 5562-26, requiring persons on meeting, to seasonably turn to the right of the center of the highway, it is negligence, which was the proximate cause of the accident, for the driver of a truck, already to the left of the center, to suddenly swerve to the left and strike the rear of an approaching auto that was at the extreme right of a level road fifty feet wide.
    Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered January 3, 1918, upon findings in favor of the plaintiffs, in an action for damages to an automobile sustained in a collision, tried to the court.
    Affirmed.
    
      Sam R. Sumner, for appellants.
    
      Charles F. Wallace, for respondents.
    
      
      Reported in 176 Pac. 544.
    
   Mitchell, J.

This is an action to recover damages to an automobile by reason of a collision with a motor truck owned by appellant Cashmere Warehouse & Storage Company, a corporation, which was driven at the time by appellant J. H. Sprague in the delivery of ice for the corporation in the town of Cashmere and vicinity. The collision occurred about 1:30 o ’clock in the afternoon, at a point on a public highway running east and west along the south boundary of the town. The automobile was running towards the west, the truck towards the east. At the place of the collision, and for some distance east and west, the highway is open and smooth, and the traveled portion of it is about fifty feet wide. On the south side and adjoining the road at the place of the accident, in front of the residence of one F. W. Stein, the ground is level with the road. Going westward in the town, this highway runs southwesterly at an acute angle to, and rounds an easy curve into, this east-and-west stretch of the road at a point about 100 feet east of the place at which the collision occurred. Sprague, engaged in the delivery of ice, was returning from west of the Stein home, and some distance before reaching it blew a signal understood by, and intended to attract the attention of, the Steins, who were customers, and thereafter proceeded in the center of the road at a speed of about six miles an hour, steadily looking southward towards the Stein house to ascertain if ice was wanted, until just about opposite the Stein home, when he was advised, by signal, ice was not wanted. In the meantime, and for some little distance, the course of the truck had veered, and continued to veer, slightly to the left, so that it was already north of the center of the road when Sprague, upon changing his view from the Stein house, first saw the approaching automobile, within fifteen or twenty feet, traveling in such direction as to be entirely safe but for the fact that instantly Sprague caused his truck to turn abruptly to his left, smashing into the rear end of, and upsetting, the automobile and causing the damage complained of. From the other way, the automobile was driven about fifteen miles an hour by one Eliot, who, with a companion, in rounding the curve in the road, and while at a distance of about one hundred and sixty feet from the approaching truck, observed that Sprague was looking in another direction than straight ahead, and also noticed the situation and direction of the truck. Eliot, who was already on the north or right-hand side of the road, promptly put his automobile to the extreme north side of the road, running for some distance within six to twelve inches of a ditch or gully of consequence without apparent danger from the approaching truck but for the sudden turn or swerve of the truck when so close by that the accident could not be avoided by Eliot. Neither driver gave any signal or warning. There was a trial to the court without a jury, and findings and judgment for plaintiffs.

The law of the road in this state is as stated in § 26, ch. 142, Laws of 1915, p. 394 (Rem. Code, §5562-26), as follows:

“It shall be the rule of the road that every person driving a motor or other vehicle or riding or driving any animal or animals upon the public highway or in any other similar use of such highway shall, upon meeting any other person so using such highway, seasonably turn to the right of the center of the highway so as to pass without interference. . . .”

Obeying this rule, respondent’s automobile was being driven on the right-hand or north side of the road, and on observing the approaching motor truck, somewhat over the center and on the same side of the road, the driver of the automobile seasonably took to the north limit of the highway, pursuing a course which was perfectly safe, until the driver of the motor truck suddenly and violently further deflected its course to the left, leaving no chance or opportunity for the driver of the automobile to escape collision.-

On the other hand, the truck driver, while, of course, having the right to attempt to get the attention of, and to glance away from the road to get a signal from, a prospective ice customer, steadily gazed in that direction for a considerable time as his truck, already in the middle of the road, commenced to swerve to the wrong side, when there was approaching, as he could and should have seen, one driving an automobile; and yet he negligently refused or failed to see it until so near by that, by his negligent and sudden turn still more directly to his left, he collided with the auto, which he could and would have entirely escaped but for his last negligent act. Thus it is seen that the truck driver’s negligence was progressive and continued up to the very time of collision, the last act of which was the immediate cause of the accident. While some other questions are discussed by counsel, we are of the opinion that the. controlling one in this case is simply one of negligence and the ascertainment of whose negligence was the cause of the injury. This, of course, is a question of fact, which the trial court found against appellants. The evidence, which has been examined, satisfied us that the trial court was right, and that the negligence of the motor truck driver was the proximate and efficient cause of the collision.

There exists between the parties some question of practice, still unsettled, involving- the condition of the record here, which we ignore after hearing the case argued on the merits; a course on our part harmless to the parties, because that one contesting the record gets a favorable decision at our hands, while the other has received the consideration of the whole record, which is short, as if it had not been questioned. Judgment affirmed.

Main, C. J., Fullerton, Parker, and Tolman, JJ., concur.  