Anderson v. McLaren

• Decision Date: 08 January 1921
• Docket Number: 15948.
• Citation: Anderson v. McLaren, 114 Wash. 33, 194 P. 828 (Wash. 1921)
• Court: Washington Supreme Court
• Parties: ANDERSON v. McLAREN et al.

194 P. 828

114 Wash. 33

ANDERSON v. McLAREN et al.

No. 15948.

Supreme Court of Washington

January 8, 1921

Department 2.

Appeal from Superior Court, King County: Boyd J. Tallman, Judge.

Action by O. H. Anderson against W. G. McLaren and others. Judgment of dismissal, and plaintiff appeals. Reversed and rendered.

Roberts & Skeel and L. B. Schwellenbach, all of Seattle, for appellant.

Farrell Kane & Stratton and James B. Murphy, all of Seattle, for respondents.

HOLCOMB C.J.

Through no fault of his, appellant's car, while standing lengthwise alongside the curb, on the west side of Sixth avenue, Seattle, 60 feet north of the Union street intersection of Sixth avenue, was run into by a car driven by Mrs. McLaren and owned by respondents McLaren. The accident occurred on the afternoon of April 14, 1919. Appellant's car was unoccupied and motionless. He had the right to stand his car in that location.

Mrs McLaren drove into the car of appellant while trying to avoid a collision with a Ford truck owned by the other respondent the Model Transfer Company of Seattle, which was being driven out from the curbing on the east side of Sixth avenue across the street between street intersections, until it crossed half, or a little over half, the width of the street. The street was 42 feet wide and was paved.

The trial court found and concluded that neither respondent was negligent; that the accident occurred through the fault of nobody; that the action should be dismissed with prejudice and that the innocent owner of the bystanding car should pay the costs of the defenses. His motion for a new trial having been unsuccessfully made, appellant prosecuted this appeal from the judgment of dismissal entered by the trial court.

On the east side of Sixth avenue, and at a point nearly opposite the place where appellant's automobile was standing, the Ford truck, owned and operated by respondent Model Transfer Company, was backed up against the curb. Mrs. McLaren was driving her Dodge touring car north on the east side of Sixth avenue. She proceeded across the Union street intersection at a speed of about 10 or 12 miles an hour. When she was somewhere between this street intersection and the place where the Ford truck stood, Nissen, the driver of the truck, started it out from the curb against which it had been backed. The testimony of Mrs. McLaren and of Mrs. Parker, who was riding with her in the Dodge automobile, was to the effect that several other Ford trucks were standing against the curb on the east side of Sixth avenue between Union street and the place where the Ford truck came out. That there were any other automobiles standing along this place is denied by the driver of the Ford truck and the young man riding with him. There was at least one automobile, and perhaps others, on the opposite, or west, side of Sixth avenue, near appellant's car. The driver of the Ford truck started it out from the curb at about the time that Mrs. McLaren reached the street intersection, from 60 to 75 feet away from him. He says he saw her car at this distance, and that, inasmuch as, according to his testimony and that of his companion on the truck at that time, there were no other cars along the curb south of him to the Union street intersection, she had a clear view of his car as it started out. Mrs. McLaren testified that she did not see the Ford truck until her car was within about 10 feet of it; she and her companion claiming, as already noticed, that other trucks were standing just south of the Ford truck in question. The truck driver testified that, after the truck had proceeded about six feet out from the curb, he stopped it to allow Mrs. McLaren to go ahead of him; that she turned as if to pass in the rear of the truck, and he started ahead again to give her room to do so; that she then swung her car to the west with the intention of going ahead of him, so he stopped the Ford truck again; and that her car crashed into appellant's Buick car. Mrs. McLaren's version of what occurred was to the effect that she was driving north along the east side of Sixth avenue, close in to the other trucks, which she says were standing there (and which Nissen denies), when for the first time she saw the Ford truck driven by Nissen as it started out from the curb; that she was at that time about 10 feet from this truck; that she thought that if she did not turn she would strike the truck and perhaps she and Mrs. Parker would be killed, so she swerved to the west, or left; that she saw a number of cars standing on the west side of Sixth avenue and knew that, in swerving to the left, she had to hit one of them; that, immediately upon seeing the Ford truck, she applied her brakes, then swerved to the left, and collided with appellant's car.

Mr Wolff, a witness called by appellant, testified that, just before the accident, he had driven his car up behind appellant's car and parked it there; that he happened to look up and see the Ford truck coming out from the curb on the other, or east, side of the street, and the Dodge car driven by Mrs. McLaren as it came up the street on the east side; that the two...