
    SCHNABEL, Respondent, v. KAFER, Appellant.
    (162 N. W. 935.)
    (File No. 4047.
    Opinion filed May 26, 1917.)
    1. Highways — Use, Regulation of — “Traveled Part” — Statute Construed.
    Under Pol. Code, Sec. 1766, providing that whenever any .pea-sons shall meet' each other on any road, etc., traveling with carriages, wagons, or other vehicles, each shall pass to the right of the middle of the traveled part of such road, held, that by the use of the words “traveled part,” is meant that portion of the right of way actually used, and not the entire width of the highway.
    a. Negligence — Collision on Highway — Failure to Turn Out, Inability — Lookout, Failure of Other to Keep — Statute.
    Where an automobile driver going westward, who saw coming at a distance a bicycle rider, who was approaching on the south side of the wagon track in the highway and who did not see the automobile, might have turned to his- right without meeting with obstacles, and thus have .passed the rider without colliding with his bicycle, held, that it was the driver’s duty, after seeing the rider, to exercise ordinary care to avoid the collision; it appearing that had he given the rider half the highway, as required by Pol. Code, 1766, the’accident would not have .occurred; nor could the automobile driver escape liability on the ground of the other’s negligence in failing to keep a lookout. •
    Appeal from Circuit Court, McPherson, County. Hon. Joseph H. Bottum, Judge.
    Action by John Sdioabel, Jr., against Karl Kafer, to recover ■damages resulting from collision with an automobile. Prom' a judgment for plaintiff, and from an order 'denying a new trial, defendant appeals.
    Affirmed.
    
      L. T. Boucher, and Thomas Ringsrud, for Appellant.
    
      James M. Brown, for Respondent.
    (x) To point one of the opinion, Appellant cited: Daniels v. Clegg, 28 Mich. 32.
    Respondent cited: Needy v. Littlejohn, 115 N. W. 483; Andfersion v. Sparks, 125 N. W. 923.
    (2) To point two of the opinion, Appellant cited: Kennard V. Burton, 25 Me. 39 (43 Am,. Dec. 249) ; Pales v. Dearborn, (Mass.) 1 Pick. 345; Parker v. Adams, (Mass.) 12 Met. 415, 46 Am. Dec. 694; Angel v. Lewis, 20 Rhode Island 391, 78 Am. St. 881; Anderson v. Sparks, (Wis.) 123, N. W. 926.
    Respondent cited: Action v. Ry. Co., 129 N. W. 225; Stephenson v. Parto®, 135 Pac. 147; Gills v. Traction Co., 151 N. W. 896; Neary v.. Northern Pacific Ry. Go., 97 Pac. 944; O’Brien v. Water Power Co., 129 Pac. 391; Hennessey v. Taylor, 76 N. E. 224; Gerhard v. Ford Motor Co., 119 N. W. 904.
   POLLEY, J.

Plain-tiff, while riding on a -bicycle along a country road in McPherson county, wa© struck and severely injured by an automobile driven by defendant, and brings this action for the recovery of damages resulting from' said, injuries. Plaintiff had judgment, and defendant appeals.

There is no dispute as to the facts. The road on which the accident occurred is in a lane, 66 feet wide, and bounded on either side by a barbed wire fence. No part of the road had been worked in the sense of having been rounded up or ditched and graded. ' The roadway that was used by the public for travel at that particular place 'Consisted of but a 'single track that had been, ■worn by .wagons and other vehicles that had been .passing over it. At the place where the accident occurred, this track ran along within io feet of the wire fence along’ the north side of the lane. Appellant was traveling from the east, in a westerly direction, while respondent was conning from -tire opposite direction. Re-spent was on the' south side of the said wagon track, which was¡ the right-hand side of said track. Appellant saw respondent coming from a distance of a quarter of a mile and reduced the speed of his car to about io miles an hour, but did not turn out of said roadway or track, or any part of it, nor did he sound his horn or otherwise -signal his approach, and respondent did nio-t see or hear the car or know of it's- approach until it was too late for -him to get out of the way.

That respondent’s- injuries are serious and permanent is not disputed. But appellant contends that, a® the respondent was traveling on hi-s left-hand side of the center line of the 66-foot lane or right of way, he was guilty of negligence, and tliat, but for such negligence, the accident would- not have occurred. Section 1766 of the Pbl. Code attempts to define the rights and duties of travelers while using the public highways of this state. This section reads as follows:

“Whenever any persons shall meet each other on any bridge or -road, -traveling with carriages, 'wagons, sleds, sleighs -or other vehicle, each shall pass to the right of the middle of the traveled part of such bridge or road, so that the respective carriages or vehicles aforesaid -may -pass each other without interference.”

It is appellant’s contention that the phrase, “middle of the traveled part of the bridge or road,” as used in -said statute, means a line parallel to and halfway between the -boundary lines- of the 66-foot right of wiay. But upon- this subject the trial court instructed -the jury a-s follows :

“The traveled part of the road mentioned in the statute refers to that part which is commonly used by the public for public travel or has -been worked, prepared1, and made fit for public travel-. And I will say further, gentlemen, -that the statute refers not merely to -the track in which parties are traveling, but to the entire traveled portion of the -high way, provided that the track itself is not all there i-s in the traveled- portion of the highway.’’

. W-e believe this to be the correct interpretation of said1 statute. I-t is a matter of -common knowledge that, while the right of way for highways in this state is generally 66 feet wide, as a matter of fact only a few feet of this width is used, and in many instances only a few feet of this width- is available for travel or constitutes the traveled' .p-art of the road.

Appellants cites and relies upon Fales v. Dearborn, I Pick. (Mass.) 345, in support of his contention that the phrase “traveled part of the road1” means the entire width of the right of wiay. The Massachusetts- statute is the same as -ours, but that case grew out of a -colisi-on between two- -carriages on one of the streets in the city -of Boston where the street throughout its entire width, is presumed to have been kept open and prepared for general travel; and what is said in that case -is not applicable to country roads in this state. The New York statute -requires people, in passing each -other, to turn to the right of the center of the road, and the New York -court holds this to- mean- th-e center of the worked part of the road. Earing v. Lansingh, 7 Wend. (N. Y.) 185. The evidence in this case shows that, at the place where the accident occurred, no -part of the road had ever been worked.

Our statute is specific. By the use of the word “traveled,” it wa-s -intended to distinguish the portion of th-e right of way that is actually used by the -traveling public from the entire 66-foot strip that belongs to the public for highway purposes.

Appellant’s contention on this- phase of the case is clearly untenable. But appellant contends that, although the interpretation given- the -statute by the trial court may be correct, respondent was negligent, in that he -did not maintain a sufficient lookout to have discovered -defendant’s automobile in time to- have gotten out of the road and thus have avoided the collision. To -this -contention there ¡are two -answers: First, -respondent w-as entitled to half the -road, and- the undisputed evidence -shows that he was on the right side olf the ro-ad' at the time of the collision; so that if appellant had turned -to the right of the middle of the road, as the law -and common usage of the road required- him to have done, his car would not have interfered with respondent’s bicycle, even though respondent had not seen the car at all. The second answer to appellant’s contention is that, after seeing respondent, it was appel-tent's duty to exercise ordinary oar-e to avoid the -coll'ison even if respondent ¡had been on the wrong side of the road. .The evidence shows that, at the place where the accident occurred, the ground between the road and the fence on the north side of the lane was level 'and free from obstacles. Appellant saw respondent coming 1a quarter of a mile away. This gave him ample time, after seeing respondent, to have given warning of his approach or to have turned out and given respondent half the road. His failure to take these precautions to avoid' the collision, after 'he knew that a collision was imminent, constituted negligence on his part.. This negligence was, the proximate cause of the injury, and he is liable for the resulting damage.

Tille judgment and order appealed from are affirmed.  