“The fact that the southern third of the street at times may have been used for parking purposes does not serve to confine the width of the street to the remaining two-thirds lying to the north thereof.”
How later courts described this case
- “The fact that the southern third of the street at times may have been used for parking purposes does not serve to confine the width of the street to the remaining two-thirds lying to the north thereof.”
Written by the judges who cited it.
The opinion
Kenna, Judge,
concurring :
Since it is impossible for the driver of an automobile to determine whether the highway he is on is “permanently paved” as .distinguished from “temporarily paved”, and since it is perfectly plain that Code, 17-8-4, was meant to apply to the center of a highway that would be visually apparent to vehicle drivers, I do not agree with the definition of the center of a highway as stated in the eighth syllabus of the Court’s opinion. I believe that to permit the element of time to creep into what is a definition of a physical structure such as the center of a highway is robbing it of all usefulness. In addition, I fear it will confuse in some instances; for example, in the now rsire instance where the portion of the highway that is paved, perhaps not permanently but for a use of indeterminate duration and therefore, to my mind, subject to Code, 17-8-4, is but a single traffic lane. In that case the center of the paved portion is of course not what is meant by the statute, because in order to permit the passage of vehicles, two lanes, one unpaved in the example,'must be used. Neither is the center line of what is commonly known as the “paper location” the center of the highway, for in certain instances its center is not the center of the traveled or paved part. Instead
*257
of undertaking in this case to define the center of a highway in genera,! terms to fit all cases to the exclusion of dirt roads, I would confine the syllabus to the class of highway now involved. This accident occurred upon a fully paved street. I would therefore make the syllabus in question read: “The center line of a fully paved street between curbs is the center line of a highway within the meaning of Code, 17-8-4.”
Otherwise I concur.
Judge Lovins authorizes me to state that he concurs in this opinion.