Vogelsang v. Sehlhorst

Henderson, J., delivered the opinion of the Court. The owner and driver of a taxicab appeal from judgments against them after a jury trial in favor of the driver of an automobile and his passenger for personal injuries sustained in a collision between the two vehicles. Both vehicles were proceeding west on Edmondson Avenue between intersections about 6 o’clock in the afternoon of October 14, 1948. For speed limit purposes, Edmondson Avenue at the point of collision is “classed as a dual lane highway in the unthickly settled section of the City.” The portion of the highway where the accident occurred is designated as a one-way street with a parkway and streetcar tracks separating it from the portion used by eastbound traffic.

It is 24 feet wide, enough to accommodate three cars abreast, except when vehicles are parked on the north side. The lanes are not marked. The automobile was proceeding next.to the parkway at a speed of about 20 miles per hour. The driver of the taxicab, overtaking the automobile at a speed of about 30 miles per hour, sounded his horn twice, ⁴¹⁷ but the automobile did not move over.

The driver of the taxicab then attempted to pass it on the right, but in doing so the left rear fender of the cab came in contact with the right front fender of the automobile, causing it to jump the curb and strike a pole on the parkway. Both of the appellees testified that the automobile did not alter its course or increase its speed prior to contact. Mr. Sehlhorst testified that he did not pull to his right when he heard the horn “because that particular road there * * * you don’t have to move over”. There was a one-way sign on the parkway near the place where the taxicab tried to pass.

Cars were parked at the north curb “along there,” and it was “rather close”; “if I had gotten in the center lane I might have hit a car parked on the right side. * * * If he could have passed me why didn’t he keep straight ahead in the center lane he was in?” He testified that the cab driver cut to the left before he had completely passed and hooked the right fender of the automobile with the left rear fender of the cab. The cab driver admitted that he cut to his left, to avoid a car parked about 40 feet east of the intersection of Edmondson Avenue and Stanford Road. He testified that after passing the automobile and “before reaching this parked car I looked in the rearview mirror and seen the reflection of his lights, so I had plenty of room to go around the parked car.” He did not testify that he gave any signal before cutting to the left. He testified that “the skirt” of his left rear fender was “pulled out”, and he “pushed it down” after the collision.

Three witnesses testified that the skirt was pulled out to the rear. Section 162, Article 66% of the Code provides: “ (Drive on Right Side of Roadway — Exceptions.) Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows: * * * (3) Upon a roadway divided into three marked lanes for traffic under the rules applicable thereon; or (4) upon a roadway designated and sign posted for one-way traffic.” ⁴¹⁸ Section 164 provides: “(Overtaking a Vehicle.) The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to the limitations, exceptions, and special rules hereinafter stated: (a) The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle, (b) Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.” Section 165 provides: “ (When Overtaking on the Right is Permitted.) * * * (b) Within business or residence districts, the driver of a vehicle may overtake and, allowing sufficient clearance, pass another vehicle proceeding in the same direction either upon the left or upon the right on a roadway with unobstructed pavement of sufficient width for four or more lines of moving traffic when such movement can be made in safety. * * *.” Section 168 provides that where three marked lanes are provided, the center lane shall be used for passing, but that signs may allocate particular lanes for special purposes. Section 162 clearly provides that vehicles are not required to keep to the right on a one-way street, and, by implication, that passing on the right is permitted on such a street. While section 165 does not refer specifically to a one-way street, it permits passing on the right in a business or residence district, whether lanes are marked or not, if the roadway