
    O’MALLEY v. EAGAN, ET AL.
    (No. 1677;
    Nov. 24, 1931;
    5 Pac. (2d) 276)
   Blumb, Justice.

The appellant has filed a petition for rehearing herein. Counsel have cited us to Shirley v. American Automobile Ins. Co., (Wash.) 300 Pae. 155 and Thompson v. Schirber, (Wash.) 2 Pac. (2d) 664, and claim that our decision in this case is inconsistent therewith. But we are unable to see how these cases can have any possible application in the case at bar. In the Shirley case the road was 187% feet wide and the accident happened in the day time. The driver of the Shirley car was held to have been negligent in turning to his left instead of to his right. The trial court excused him on account of becoming confused by the sudden peril in which he was placed. But the Supreme Court said:

“But we cannot think this doctrine has application here. There was no sudden peril. The driver of the Shirley automobile saw the other automobile approaching for a long distance away and observed the eccentric manner in which it was being driven. He had almost a hundred feet of un-incumbered highway to his right into which he could have turned with safety. Instead of doing so, he drove straight towards the oncoming automobile, and made no effort to avoid it until it was directly upon him. ’ ’

Tbe decision was, of course, correct under tbe facts in tbe case. In tbe Thompson case, Scbirber, tbe appellant, was by tbe court found to bave been on tbe wrong side of tbe road, and tbe trial court, as well as tbe Supreme Court, beld bim liable for tbe collision wbicb occurred with tbe respondent’s car, and it was correctly pointed out, in full accord with tbe principle stated in our original opinion, that Thompson, tbe respondent, who was on tbe right side of tbe road, bad a right to presume that Scbirber would turn away from bis wrong side in order to avoid the collision. "What tbe court said is very apropos in the ease at bar:

“Appellant husband saw respondent’s automobile when it was one fourth of a mile distant, yet continued to drive on tbe wrong side of tbe highway, occupying so much thereof that it was impossible for tbe respondent to pass. * * * Had tbe automobile of tbe respondent been standing still at the point where tbe collision occurred, where tbe respondent bad a right to be, tbe accident would bave happened just as it did happen. ’ ’

In tbe case at bar counsel seek to hold liable tbe driver who was on bis right side of tbe road until be came within fifty feet of tbe car wbicb was on its wrong side, and, contrary to the principle stated in many cases cited in our original opinion, argue that he should not bave turned to tbe left even then, though be had no room, or little room, to bis right. They claim that it should be presumed that, bad the respondent slowed down or stopped, Eagan would then bave turned to his right. We are unable to see bow there is any room for any such presumption under tbe facts in tbe case. Under the evidence, he bad not so turned when be was within fifty feet of respondent’s car, without any indication that even then be made tbe slightest move in that direction. But though we might indulge in tbe presumption that Eagan would bave turned to bis right, if tbe respondent bad not turned to tbe left, all tbe probabilities are, in view of tbe extreme shortness of time, that tbe collision would have occurred anyway, and merely in a slightly different manner.

Counsel take exception to our statement in the original opinion that they should have been able to point out how the accident could have been avoided. But surely, if the ingenuity of counsel cannot do so, it is hardly to be expected that a jury would have had any reasonable grounds for so finding. Counsel say further: “We submit that it is not incumbent on the plaintiff to show how the accident could have been avoided, if the negligence presented could reasonably have been the proximate cause of the injuries. ’ ’ Counsel perhaps did not mean that. To point out the proximate cause of the injuries as a result of defendant’s negligence results in pointing out how the accident could have been avoided, had the respondent been in the exercise of reasonable care.

We have given the case the most careful consideration. The evidence is comparatively meager. The main testimony is that of the respondent himself. We must necessarily give our decision upon the evidence in the record, and that evidence, so far as we can see, fails to show how any negligence of the respondent was the proximate cause of the injuries in this case. We see no reason for a rehearing, and it must accordingly be denied.

Rehearing Denied.

Kimball, Ch. J., and Renee, J., concur.  