Arnold v. Sanstol, 32471

• Decision Date: 13 August 1953
• Docket Number: No. 32471,32471
• Citation: 43 Wn.2d 94,260 P.2d 327
• Court: Washington Supreme Court
• Parties: ARNOLD, v. SANSTOL et al.

Page 94

43 Wn.2d 94

260 P.2d 327

ARNOLD, v. SANSTOL et al.

No. 32471.

Supreme Court of Washington, Department 1.

Aug. 13, 1953.

Wright and Wright, Seattle, for appellant.

Kahin, Carmody & Horswill, Seattle, for respondents and cross-appellants.

OLSON, Justice.

Plaintiff was injured in a collision between a taxicab in which she was a paying passenger, and a car driven by defendant Swars. The jury returned a verdict in her favor against both defendants, but defendants Sanstol, to whom we will refer as the cab company, were granted a new trial. Plaintiff has appealed from this ruling. The cab company has cross-appealed, and assigned error upon the denial of its motions for dismissal at the close of the case and for judgment notwithstanding the verdict. Defendant Swars has not appealed.

This collision occurred on Westlake avenue north in the city of Seattle. This is a four-lane arterial street running generally north and south. It is practically straight for more than five hundred feet south of the point of collision, and to the north from about this point, it curves slightly to the west. It is approximately level in this vicinity, and is surfaced with blacktop forty-six feet wide. Its center was marked by a double line. Two traffic lanes on each side of the double line were marked by broken lines ten feet from the center lines.

The collision occurred about 2 o'clock in the morning. Rain was falling at the time. The car being driven by defendant Swars came from the north and collided with the cab, which came from the south. The vehicles met 'head on' or nearly so. The entire front end of both cars was damaged badly, the most severe damage being on the left side of the front of each car.

The driver of the cab was killed in the collision. Plaintiff testified that, as the cab came into Westlake, she noticed nothing abnormal in the manner in which it was being driven. She testified that, as she was looking through a window on the right side of the cab for the address to which she was going (apparently they had driven beyond it), the driver remarked: "The vision is awfully poor tonight. I can't hardly see." Her testimony continued:

'Q. What happened then? A. Well, I noticed how far over to the center of the highway he was and that he was going awfully fast, and I said, 'You're going awfully fast. You better pull over in your own lane.' And the cab swerved then, and that is all I ever knew. * * * [On cross-examination, she said it swerved to the right.]

'Q. You say when he made that remark you observed he was going fast? A. Yes. Q. How fast do you think he was going? A. I don't know the exact speed. I didn't look at the speedometer, but it must have been up over fifty miles an hour, I'm sure.'

She placed the cab near, but not over, the center line of the street. She did not see the approaching car. She could not tell how much time elapsed or the distance the cab traveled after the quoted observations and before the impact.

Swars testified that his last recollection of the events was when he was thirty to forty feet, or possibly one hundred feet, from the cab. At that time, he was on his right side of the center line, and the cab was on its own side of the street. He placed both cars near the center line. His speed was about thirty-two miles an hour, and he noticed nothing unusual in the speed of the cab. He could not explain how the collision occurred.

The only witness who testified that he observed the accident, was following the cab and was three hundred feet or more behind it when the collision occurred. He testified that he was going about thirty-two miles an hour and was overtaking the cab. He placed the cab at a point to the right of the center line of the street, straddling the broken line marking the traffic lane. He observed the approaching car (driven by Swars) turn to its left and collide with the cab on the cab's side of the center line. He observed no change in the direction of the cab before the collision.

The law of this case is stated in the unchallenged instructions given to the jury, of which the following are material to our inquiry. They state that it was the duty of Swars to exercise reasonable and ordinary care, and of the cab company to use the highest degree of care consistent with the practical operation of the cab under the circumstances.

After defining the lawful speed of vehicles at the point of collision, they state that, if the jury should find that the Swars automobile turned suddenly from its side of the street and collided with the cab on the east side of the street, and that such turning was so sudden and when the vehicles were so close to each other that it would have been impossible for the cab driver to have avoided the collision, then the excessive speed, it any, of the cab would be immaterial on the question of liability.

They further state that it is unlawful to drive a vehicle across any street at any place other than at a street intersection, and that, if the jury found that Swars violated this rule, such violation would constitute negligence, and that if they further found this to be the sole proximate cause of the accident, their verdict should be in favor of plaintiff and against Swars, and in favor of the cab company.

A further instruction states that it is the duty of the operator of a vehicle to drive to the right of the center of the highway at all times, and that the driver of a vehicle meeting one approaching from the opposite direction, has a right to assume that the approaching driver will keep on his side of the street, until he sees or, in the exercise of reasonable care on his part, should see that the approaching driver is not obeying this rule of the road.

A further instruction is:

'Your problem is to determine where this accident occurred. If it occurred on the east side of the center of the highway, then you are instructed that the defendant Swars was guilty of negligence, and if such negligence was a proximate cause of the accident, then your verdict should be against the defendants Swars. Likewise, if you find the collision occurred to the east of the center line of the street, then your verdict should deny liability against the defendants Sanstol [cab company], unless you further find that, despite...