American Products Co. v. Villwock, 28081.

• Decision Date: 27 January 1941
• Docket Number: 28081.
• Citation: 109 P.2d 570,7 Wn.2d 246
• Parties: AMERICAN PRODUCTS CO. v. VILLWOCK et al.
• Court: Washington Supreme Court

109 P.2d 570

7 Wn.2d 246

AMERICAN PRODUCTS CO. v. VILLWOCK et al.

No. 28081.

Supreme Court of Washington

January 27, 1941

Department 1.

Action by the American Products Co. and another against Emil Villwock, doing business as Naches Fuel & Feed Company, and Charles Villwock to recover damages for the impairment of a truck and for personal injuries, wherein the named defendant individually and as guardian ad litem for Charles Villwock his minor son, filed a cross-complaint seeking to recover damages for the demolition of his truck and for personal injuries. From a judgment for defendants, the American Products Co. appeals.

Affirmed.

Appeal from Superior Court, Yakima County; Dolph Barnett, judge.

Cheney & Hutcheson and John Gavin, all of Yakima, for appellant.

Roberts, Swanson & Tunstall, of Yakima, for respondents.

STEINERT Justice.

This action is the sequel to a collision between two automobile trucks. Plaintiffs, American Products Co. and Frank Thompson, the owner and the driver, respectively, of one of the trucks, instituted the action jointly to recover damages for the impairment of that truck and for the injuries sustained by its driver. Defendant Emil Villwock, owner of the other truck, acting both in his individual capacity and as guardian ad litem for his minor son, defendant Charles Villwock filed a cross-complaint, seeking to recover damages for the demolition of that truck and for the injuries sustained by the son, the driver thereof.

The action was tried to a jury, and resulted in verdicts awarding damages to defendants. Plaintiffs interposed motions for judgment notwithstanding the verdicts and for a new trial. Defendants having consented to a reduction of one of the verdicts, in an amount designated by the court, both motions of plaintiffs were denied, and judgment was entered accordingly. From that judgment, plaintiff American Products Co. alone has appealed, and will hereinafter be referred to as appellant; defendants will be referred to as respondents.

Appellant, a corporation, was engaged in the business of collecting and processing dead animals and utilizing the by-products obtained therefrom. In the conduct of its business, it sent out its trucks into the neighboring territory to gather up carcasses and fractional parts thereof and bring them to its processing plant in Yakima for treatment.

Respondent Emil Villwock was engaged in business in, or near, Yakima, under the name of Naches Fuel & Feed Company, and in connection with that business bought and sold farm produce, shipments of which he at times forwarded by truck to the market in and around Seattle. His son, respondent Charles Villwock, eighteen years of age, drove for him during the summer of 1939, as he had previously done during a year when he remained out of school. In the course of such employment, the son had made about thirty round trips from Yakima to the coast, hauling produce in one of his father's trucks.

State Highway No. 3, leading from Yakima to Ellensburg, is a paved road having four lanes of travel for a distance of about 5 miles immediately north of Yakima and until it reaches a road diverting to the west across the Selah bridge. From that point on, toward the north, the state highway is a two-lane road having a width of from 20 to 22 feet, and marked with a yellow line along the middle.

Approaching the Selah road from both directions, the paved highway describes a long, sweeping curve, a quarter of a mile or more in length, which bends to the right as one comes from the direction of Yakima. The most abrupt portion of the curve is about midway of its entire sweep, and is near the point where the Selah road diverts. From one end of the curve to the other, the highway effects a change in direction of approximately ninety degrees. The northerly extremity of the curve is about 500 feet north of the Selah road. Beyond, or north of, that point, the highway is straight, and runs in a northerly direction. The curve, from the Selah road to its northerly extremity, has an ascending grade of about one per cent.

Along the edge of the pavement on both sides of the highway, and throughout the length of the curve, is a 6-foot graveled shoulder. Beyond the shoulder on the east side of the highway is a ditch, and beyond that, at a distance varying from 9 to 16 feet from the pavement, is a high, almost perpendicular, rock bluff which cuts off the view around the turn. Along the outer edge of the west shoulder of the highway is a guard fence, and just beyond that is the Yakima river.

At the west edge of the highway, at a distance of 200 or 250 feet north of the northerly extremity of the curve, and about 700 feet north of the Selah intersection, is a road sign indicating a speed limit of 35 miles per hour. At a point on the highway 220 feet north of the road sign is what is designated as 'curve sign.'

On August 23, 1939, at about 7:50 in the evening, respondent Charles Villwock was driving his father's one and one-half ton Dodge truck in a northerly direction along the above-described curve, en route from Yakima to Bremerton. The truck was loaded with eighty-two bales of hay, weighing approximately five and one-half tons. Twelve of the bales, weighing over three-fourths of a ton, were loaded on a specially constructed platform extending over the cab of the truck. The load was 12 feet in height from the ground, and was about 8 feet wide. The equipment as loaded was approximately 18 feet long and weighed about eight tons. Charles was accompanied at the time by a helper who was to assist him in unloading the hay at Bremerton.

The highway was dry, and the weather was clear. The evening had reached that point of time described as 'cusk,' and the lights of the truck were accordingly burning.

At the same time, a 1937 International truck owned by appellant, and driven by plaintiff Frank Thompson, was proceeding south along the highway, towards Yakima, and was approaching the northerly end of the curve. The truck carried ten 50-gallon barrels of animal intestines, a dead horse, and a dead cow. The equipment as loaded weighed over five tons. The headlights of that truck were likewise burning at the time. Accompanying Thompson was a young lady who had joined him at or near Ellensburg and who had been with him during the afternoon while he was collecting his load.

In the vicinity of the road sign just north of the northerly extremity of the curve, the International truck, driven by Thompson, overtook a girl bicyclist who was also riding in a southerly direction on her way to Yakima. The girl wore a loose, lightcolored shirt, and brown slacks which were rolled up above her knees. The bicycle was equipped with a lighted flashlight in front, a red reflector in the rear, and had bright chromium fenders.

Approaching the bicycle, Thompson, in an attempt to pass it, pulled sharply to his left, onto the east lane of travel, and, after proceeding straight forward some distance in the east lane, pulled sharply to his right, intending to gain a place in the west lane, ahead of the bicycle. In the meantime, the Villwock truck had continued forward around the curve, in its proper lane, to a point near the northerly extremity of the curve. Thompson, on seeing the approaching truck ahead of him in the east lane, attempted to get over onto his own proper lane, and managed, by speeding up, to get the front wheels of his truck across the yellow center line, but the main body of his vehicle was still in the east lane when it was struck with great force by the front end of the Villwock truck, which was then proceeding along its own right side of the road. As a result of the collision, both trucks came to an immediate stop, with the front wheels of appellant's truck resting in the west lane of travel, the right front wheel of respondents' truck extending about a foot onto the east shoulder of the road, and the remaining portions of both trucks resting in the east lane of travel in angling positions, facting in opposite directions. The Villwock truck received the greater damage, amounting almost to demolition. The hay was strewn upon the highway, and the intestines, which had been contained in barrels in appellant's truck, were emitted in a general shower, ruining a considerable portion of the hay. Thompson received minor injuries, and Charles Villwock received severe injuries, as will be shown later. The two companions of the drivers escaped unhurt.

We have thus far given only a general outline of the evidence. Further details will be supplied in connection with our discussion of the legal questions raised.

The verdicts reflect the jury's view of the proximate cause of the collision and of the amount of damages sustained by respondents.

Appellant, being thoroughly dissatisfied with the verdicts and the judgment, invokes relief from this court, and in its brief sets up thirteen questions under a 'Statement of Questions Involved' covering four and one-half pages (the rules of this court specify that two pages shall be the limit, Rules of the Supreme Court, Rule XVI, 193 Wash. 23-a), and lists sixteen assignments of error, predicated upon a transcript containing fifty-four pages and a statement of facts comprising 393 pages. We mention these matters merely in justification of the length to which this opinion will be required to go in order to dispose of the many questions raised, although, for the most part, nothing other than wellsettled principles of law will be presented.

According to appellant's summary of its assignments of error, the following propositions are advanced: (1) that the evidence falls far short of convicting appellant of any negligence; (2) that it affirmatively appears, beyond any dispute, that respondents were guilty of...