Alexiou v. Nockas

• Decision Date: 12 January 1933
• Docket Number: 24214.
• Citation: 17 P.2d 911,171 Wash. 369
• Parties: ALEXIOU et al. v. NOCKAS. RAPTIS v. SAME. NOCKAS v. SAME.
• Court: Washington Supreme Court

17 P.2d 911

171 Wash. 369

ALEXIOU et al. v. NOCKAS.

RAPTIS v. SAME.

NOCKAS v. SAME.

No. 24214.

Supreme Court of Washington

January 12, 1933

Department 1.

Appeal from Superior Court, King County; John M. Wilson, Judge.

Consolidated actions by Louis Alexiou and others, John Raptis, and George Nockas, respectively, against Louis Nockas. Judgment for plaintiffs, and defendant appeals.

Reversed and remanded, with direction.

L. B Schwellenbach, of Seattle, for appellant.

C. D Liliopoulos, of Seattle, for respondents.

MILLARD J.

Defendant has appealed from judgment upon verdicts in favor of plaintiffs in three personal injury actions which were consolidated for trial and have been consolidated on appeal.

The actions were based upon an accident which occurred approximately one mile west of Lacey on the Pacific Highway about noon of June 28, 1931. All of the parties, who were en route from Seattle to a picnic at Chehalis, were riding, at the time of the accident, in a Studebaker sedan owned and operated by appellant. Respondent George Nockas appellant's brother and guest, was seated to the appellant's right in the front seat. Respondent Raptis and the respondent Alexiou family (husband, wife, and minor child) were in the rear seat. Appellant, while traveling at an unlawful rate of speed (in one action alleged to be approximately forty-five miles an hour, and in the other two actions alleged to be approximately fifty miles an hour), lost control of his automobile immediately after he rounded a curve just prior to the accident. His automobile swerved off the road, hit a telephone pole, was forced into reverse, and then backed up a considerable distance and hit a second pole. The jury found, as the respondents alleged, that the proximate cause of the accident was the gross negligence of appellant.

'That about noon of the said date the defendant, while driving on the paved highway near Olympia, negligently and carelessly went off the pavement of said road and while on the parking strip, consisting of solidly packed road wide enough and almost level with the paved way, with gross negligence and carelessness steered his said automobile to his right and off the parking strip and struck violently against a power pole on the edge of said strip; that he thereupon reversed the gear of his car and moved with high velocity backwards without control, resulting in his striking with the rear against another pole within a short distance from the first mentioned. That the defendant was at the time of the said acts driving at a high and dangerous rate of speed, to-wit, approximately forty-five miles per hour.'

The relationship of appellant and his respondent brother was that of host and guest. There was the relationship of joint adventurers as between the appellant and the other respondents, by virtue of an agreement under which the expenses of the journey and the picnic were to be borne by those respondents and the appellant.

While the complaint did not allege continuing negligence, the affirmative evidence (there was no objection to that evidence) adduced by respondents tended to show that from the beginning of the journey continuously to the time of the accident, which was doubtless caused by the speed of the car, the appellant drove his automobile at an unlawful speed (often approximately sixty-five miles an hour), occupied the middle of the pavement, and did not stop at intersections as required by the rule of the road. Although all of the respondents realized that the speed was unlawful and dangerous, only one mild protest was registered during the mad career of the automobile. When the automobile was near American Lake, Mr. Alexiou learned, upon asking appellant, that the car was traveling sixty-five miles an hour. Alexiou told the appellant the car was going very fast and requested that the speed be slackened. For a brief space the speed was decreased, and immediately thereafter appellant proceeded, and continued to the time of the accident, to drive the automobile at an unlawful rate of speed. No further protests were made; the excuses being that the respondents did not like to interfere with the driver of his own automobile, and that they did not get out when a stop was made at Tacoma because 'it was too far to walk.'

Counsel for appellant contend that the judgment should be reversed and the cause dismissed as to all of the respondents, except the minor Alexiou, in view of the respondents' acquiescence in the method of the operation of the automobile; or, that appellant is entitled to a new trial because of the refusal of the court to instruct the jury on this issue.

At the conclusion of respondents' case, appellant challenged the sufficiency of the evidence and moved for a judgment of dismissal on the ground that respondents' affirmative evidence disclosed a continuation of negligent operation without objection or protest on the part of respondents. The motion was denied. The court also refused to charge the jury, as appellant requested, that: '* * * with the exception of the minor child, John Alexiou, who because of tender years cannot be charged with contributory negligence, that if you find the accident in this case was the natural and proximate result of the defendant's excessive speed and reckless driving that such manner of driving had existed and continued prior to the time and place of the accident for a sufficient length of time to afford opportunity of protest or of leaving the car; that plaintiff observed defendant's manner of driving or in the exercise of ordinary care for their own safety should have so observed, and you find that under the same or similar circumstances a reasonably prudent and cautious man in the exercise of ordinary care would have made some effort to secure the proper operation of the car, or given opportunity, left it, and you further find that plaintiffs made no protest as to the method of operation of the car or given opportunity did not leave it, then I instruct you that plaintiffs were guilty of contributory negligence which would bar any recovery in this case.'

Meeting the contention of respondents' counsel that, not having pleaded the defense, appellant could not raise the question of contributory negligence, appellant offered to amend the pleadings to conform to the proof and set up the acquiescence of the respondents in the method of operation of the automobile. Appellant's request was denied.

Any question as to the gross negligence of the appellant is foreclosed by the jury's verdict, which is amply sustained by the evidence. In the case of a joint enterprise the rule of ordinary negligence applies. O'Brien v. Woldson, 149 Wash. 192, 270 P. 304, 62 A. L. R. 436. The members...