Thе plaintiffs, Edward Leonard, Elzie Morrison, and Irving B. Babcock, brought separate suits against the defendant, Roy E. Hey, for damages arising out of an automobile collision between a Buick sedan owned by Irving B. Babcock and operated by his chauffeur, Elzie Morrison, and a Graham Paige sedan owned by defendant, Roy E. Hey, and operated by his wife, Lovina Hey, Edward Leonard, the other plaintiff, was a passenger in the Buick car. All three cases were consolidated and tried before the trial judge, a jury trial being waived.
The undisputed facts. are that the collision occurred November 5, 1931, at about 4 p. m. on "Woodward avenue in the city оf Birmingham. Plaintiffs were driving south on Woodward and had passed the intersection of Oak street, while defendant’s wife and her mother werе driving north on Woodward avenue. Woodward avenue is a wide paved highway with double street car tracks in the center and nеar the intersection with Oak street a part of the east half of Woodward avenue comes to an end, so that north-bоund traffic must cross the street car tracks to the left in order to continue on Woodward avenue, north of Oak street. That portion of Woodward avenue north of Oak street being wide enough, however", to provide room for two cars traveling abreast going north and south. The county road commission had marked the pavement at this crossing to separate north and sоuth-bound traffic. On the west side of Woodward avenue and south of Oak street is located a gasoline station with two driveways leаding into it. The distance between the west *493 curb of Woodward avenue and tbe west rail of tbe car track is 31 feet. It bad been raining and tbe pavement was wet and slippery and as tbe driver of defendant’s car started to cross tbe tracks, in order to enter into tbe narrower part of Woodward avenue, ber car skidded on tbe rails and tbe car beaded westerly towards оne of tbe driveways of tbe gasoline station and then turned in a northerly direction colliding with plaintiff’s car.
It is tbe claim of tbe plаintiff that be was traveling south 30 miles per hour on Woodward avenue; that be slowed down to 20 miles per hour at Oak street and came to a stop at tbe moment of tbe impact; that tbe collision occurred within five feet of tbe west curb of Woodwаrd avenue and 25 feet west of tbe center of tbe street; that defendant’s car was being driven at a rate of speed еstimated at being from 30 to 35 miles per hour; that defendant’s car skidded a distance estimated by one witness as 100 to 125 feet and that ber failure to observe traffic conditions was tbe proximate cause of tbe accident. Tbe defendant contends that tbe driver of bis car was an experienced driver; that she operated tbe car at a reasonable rate оf speed and not exceeding 25 miles per hour; that while crossing a double set of rails at a customary and designated point of crossing tbe rear wheels of ber car caught in the westerly or south-bound set of rails; that tbe defect in tbe crossing coupled with tbe wet pavement caused her car to skid to tbe westerly side of Woodward avenue; that before she could right her car and get back on tbe east side of Woodward avenue ber car stalled and while in that condition was struck by plaintiff’s car traveling at an excessive rate of speed.
*494 The trial court found that while the plaintiff’s driver was not guilty of contributory negligence, that “there is nothing to indicate, after the skidding of the car, defendant’s driver was guilty of any negligent act which was the proximаte cause of the collision. She seems to have been a reasonably good driver with considerable experience and acted as the average prudent person would do under like circumstances.” Prom this finding, plaintiffs appeаl.
It is fundamental law that the driver of a car must keep on the right side of a street or highway, but failure to keep to the right when, through nо fault of the driver, an automobile skids on a slippery pavement and is thus thrown across the road, has been held to excusе failure to comply with the statute (1 Comp. Laws 1929, § 4703;
Chase
v.
Tingdale Bros.,
The question for our consideration is whether or not there is substantial evidence from which the court could make such a finding.
Arthur McRoberts, a witness produced by plaintiffs, testified as follows: •
“Q. Can you describe the degree of the angle .that the car toоk after it changed from a straight north-bound course across the car tracks?
*495 “A. As I viewed it the car was traveling north very closе to the street car tracks, a little bit to the right-hand side, and took a very easy turn to the left to make the crossing. The front wheеls went across all right but the two rear wheels caught in the car tracks.”
Gerald Lewis, a witness for the defendant, testified :
“Q. "Will you describe for us the course and actions of the Grаham Paige as you saw it from the time you first saw it skidding?
“A. When I seen the Graham Paige, the rear end seemed to have slid around and cаught in the track and I noticed the car attempted to turn and being caught in the track and starting sliding as a result of wet tracks and seemed for a moment that the car was out of control but it was straightened up and she slowed down.”
There is undisputed evidence thаt the streets and rails were slippery and there is some evidence that the defendant’s car made an improper crossing of the tracks and a jury might be inclined to favor plaintiffs with a verdict, yet the law permits the trier of the facts a wise discretiоn in determining what those facts are. We do not substitute our judgment on questions of fact unless they clearly preponderate in thе opposite direction. In the instant case there is evidence from which the trial court could make the findings that he did.
Judgment affirmed, costs to defendant.