Allen v. Porter

• Decision Date: 23 November 1943
• Docket Number: 29076.
• Citation: 19 Wn.2d 503,143 P.2d 328
• Court: Washington Supreme Court
• Parties: ALLEN v. PORTER et al.

143 P.2d 328

19 Wn.2d 503

ALLEN v. PORTER et al.

No. 29076.

Supreme Court of Washington

November 23, 1943

Department 2.

Action for damages arising out of a collision between a motorcycle and an automobile by Jack Allen against Harold Porter and others consolidated with an action by E. S. Drennen administrator of the estate of Delbert Drennen, deceased against Chester Porter and Harold Porter, doing business as Brown Top Taxicab Company, and others. From judgments of dismissal, the plaintiffs appeal.

Affirmed.

Appeal from Superior Court, King County; Donald A. McDonald, judge.

Walter Metzenbaum, of San Francisco, and Koenigsberg & Sanford, of Seattle, for appellants.

J Speed Smith and Henry Elliott, both of Seattle, for respondents.

MALLERY Justice.

The above-entitled actions were brought by the plaintiffs to recover damages, from the defendant, arising out of a collision between a motorcycle and an automobile. They were consolidated and tried Before the court without a jury. From judgments of dismissal, the plaintiffs appeal.

On December 25, 1941, Delbert Drennen was driving his motorcycle along Griffin avenue in Enumclaw, Washington, between Harding avenue and Pioneer street in an easterly direction. The appellant, Jack Allen, was riding behind Drennen. Their motorcycle collided with the right-hand side of the respondent Travashek's automobile which was standing at a forty-five degree angle diagonally across the south half of the pavement headed in a general southeasterly direction. Prior to the collision, the eighteen year old son of respondent, Travashek, had driven the automobile off the pavement and into the ditch and after securing assistance had succeeded in pulling the car into that position shortly Before the collision. At that time it occupied all but a couple of feet of that half of the road which would be the appellant's right side. The testimony is in conflict but is appears that there was fog of some degree of density.

The respondents set up an affirmative defense of contributory negligence in two particulars.

First, that Drennen was operating his motorcycle at a high or dangerous and reckless rate of speed under the atmospheric conditions, and second, that he was operating his motorcycle with defective and insufficient headlights.

We will discuss appellants' assignments of error one, two and six together.

They are: 1. The court erred in holding Drennen and Allen were guilty of contributory negligence. 2. The court erred in holding Allen was engaged in a joint venture with Drennen and that Drennen's negligence was Allen's negligence and that Allen must have known the headlight was defective. 6. The court erroed in allowing into evidence testimony of joint venture when it was not pleaded.

While there was some conflict in the evidence, the record sustains the findings of fact by the court, among which are the following: 'That in the operation of said motorcycle at a speed of approximately forty miles per hour, at said time and place, and in having a sack over the headlight of said motorcycle without a lens as required by law, Delbert Drennen was guilty of negligence which materially contributed to his injury and death.'

And 'That Jack Allen and Delbert Drennen had started out the evening of this accident to celebrate Christmas, with the agreement they would share expenses. Allen was riding on the rear of said motorcycle and had been riding thereon with said Delbert Drennen for several hours prior to the happening of this accident; that about a half hour Before the accident, Drennen and Allen had stopped at a road house and had worked upon said motorcycle for a period of one hour to make repairs on it; that under the evidence, Allen knew of this defective headlight prior to the accident and was guilty of contributory negligence in riding upon a motorcycle equipped with such headlights.'

Appellants contend that the speed and the defective headlights were not proximate causes of the injury even though they were violative of traffic regulations, because the sack over the motorcycle lens made it easier to see in the fog and because the driver had a right to assume that the road was clear and that others would obey the law. He also contends that there was a presumption that deceased Drennen used due care in operating the motorcycle.

Contributory negligence is always a question of fact, even though the act complained of is a violation of law. Where, however, it is found that an act is a proximate cause of the injury, it can never be excused as being the act of an ordinary, prudent person, where it is in direct violation of the law. Twedt v. Seattle Taxicab Co., 121 Wash. 562, 210 P. 20, Millspaugh v. Alert Transfer & Storage Co., 145 Wash. 111, 259 P. 22, Zurfluh v. Lewis County, 199 Wash. 378, 91 P.2d 1002. Here, the court found that the defective headlight and the rate of speed under the existing conditions were proximate causes of the injury, and since they were in violation of the law, they constituted contributory negligence. Millspaugh v. Alert Transfer & Storage Co. supra, Rem.Rev.Stat. of Wash. (annot.) sec. 6360-64, Rem.Rev.Stat. of Wash. (annot.) sec. 6360-15 and 6360-25.

Appellants' citations to support their contention that this court has refused to subscribe to the doctrine that a driver must drive within the radius of his lights are not apropos when coupled with excessive speed on a foggy night. The same is true of appellants' citation in support of their contentions that a driver may assume that the road is clear and that others will obey the law, under such conditions. The presumption that due care was exercised by the deceased, Drennen, disappeared in the face of the positive and direct testimony of his lack of due care. Sweazey v. Valley Transport, Inc., 6 Wash.2d 324, 107 P.2d 567, 111 P.2d 1010, 140 A.L.R. 1; Morris v. Chicago, M. St. P. & Pac. R. Co., 1 Wash.2d 587, 97 P.2d 119, 100 P.2d 19.

The court found that Allen must have known the headlight was defective and this is sustained by competent testimony. He was also aware of the speed at which they were traveling. One riding on a motorcycle as a guest is chargeable with the operator's contributory negligence where he knows that the operator is not within the law in reference to headlights and speed. LeDoux v. Alert Transfer & Storage Co., 145 Wash. 115, 259 P. 24; Sadler v. Northern Pac. R. Co., 118 Wash. 121, 203 P. 10; Bauer v Tougaw, 128 Wash. 654, 224 P. 20; Graves v. Mickel, 176 Wash. 329, 29 P.2d 405; Meath v. Northern Pac. R. Co., 179 Wash. 177,...