I dissent, for the reason that I think that this court cannot, and should not, substitute its judgment for that of the trial court upon a question of fact, particularly so when, as in the majority opinion, inferences are indulged which do not inexorably flow from the established facts.
According to the majority opinion, the night in question *Page 400 was dark; it had been raining, and there was still a drizzle or mist at the time of the accident, so much so that it required the operation of respondent's windshield swipe. The evidence of contributory negligence upon which the majority's "conclusion" rests consists of two elements: (1) that respondent's driver did not see the first parked car "until she came upon it after she crossed the Myrtle street intersection," and (2), her lack of observation and control of her car as she passed appellant's car, which was the second parked car and with which she collided.
As to the first point, it will be remembered that the first parked car stood 125 feet south of the intersection. It was unlighted. Inasmuch as the street light in the intersection wasbetween respondent's driver and the first parked car, at least until she reached the intersection, it could not be said categorically that she saw, or was in a position to see, that car until she had crossed the intersection. She did see it, however, as she was passing out of the intersection, in time to avoid it by swerving sharply to her left. Up to that time, there was no contributory negligence on her part as a matter of law, and the judgment of the trial court indicates that there was none, as a matter of fact. But for the appellant's car, there would have been no collision.
On the second point, there is no evidence of lack of control or of observance on the part of respondent's driver. The statement to the contrary in the majority opinion is merely an inference drawn from the fact of collision. But if that kind of inference is to be drawn in this case, then there would rarely ever be a right to recover for a collision with a stationary object.
The width of the street between curbs was only twenty-four feet, or twelve feet on either side of its center line. Appellant had no right to leave her car *Page 401 parked at the curb without having a rear light thereon. Since there was no such light, respondent's driver had the right to assume that the right side of the road ahead of her was clear, and she had the right to act upon that assumption until and unless, by the exercise of reasonable care, she could have discovered a contrary condition. She pulled over to her right, as she should have done, to permit a car coming from the opposite direction to pass her, as it had the right to do. Suddenly, appellant's car, a black object, loomed before her, at a time when a collision was inevitable.
The majority say that if she had been observant, "she would have had time to drive to the right early enough for her lights to have disclosed the appellant's car." But that conclusion does not necessarily follow. She did observe the lighted car coming from the opposite direction and did what she was required to do; she pulled over to the right. She did not observe the unlighted car parked at the curb until it came within the arc of her own lights. Her failure to observe the unlighted car sooner was not contributory negligence as a matter of law, and the fact was determined otherwise by the trial court.
The position of the cars after the accident does not, of itself, establish contributory negligence on the part of respondent's driver. Had her car been turned completely around, it would not have proven that she had come from an opposite direction, traveling on the wrong side of the street.
The circumstances and conditions then existing made it peculiarly a case for the trier of the fact, who saw the witnesses, heard the evidence, and probably knew something about the actual physical conditions. It is impossible, in my opinion, for this court to decide the issue as a matter of law; and to determine it as a matter of fact merely from inferences and conclusions, *Page 402 violates the established rule relative to the province of an appellate court.
In my opinion, the judgment should be affirmed.