Basil v. Pope, 23239.

• Decision Date: 13 November 1931
• Docket Number: 23239.
• Citation: 165 Wash. 212,5 P.2d 329
• Parties: BASIL v. POPE et ux.
• Court: Washington Supreme Court

5 P.2d 329

165 Wash. 212

BASIL v. POPE et ux.

No. 23239.

Supreme Court of Washington

November 13, 1931

Department 1.

Appeal from Superior Court, Pacific County; W. H. B. Hewen, Judge.

Action by A. G. Basil against L. S. Pope and wife, in which defendants filed a cross-complaint. From a judgment for defendants, plaintiff appeals.

Affirmed.

Frank Preston, of Seattle, and John I. O'Phelan, of Raymond for appellant.

Welsh &amp Welsh, of Raymond, for respondents.

BEELER J.

At about 6:30 on the afternoon of April 2, 1926, the plaintiff was driving his automobile in an easterly direction on Duryea street in the city of Raymond, Wash. At the same time the defendants, Pope and wife, by their minor son, William Pope, were driving their automobile in the same direction and attempted to drive ahead of the plaintiff, and on so doing the two cars came into collision and were considerably damaged. The plaintiff brought an action to recover for the damages to his car, alleging that the accident occurred within a street intersection, and was due to the negligence of the defendants in that their car was operated at a rate of speed in excess of that prescribed by law. The defendants in their answer denied liability, and by cross-complaint sought to recover for damages to their car. They denied that the place where the accident occurred was a street intersection, and alleged that the collision occurred through the negligence of the plaintiff in making an abrupt turn to the left without giving any warning that he intended to make a left turn. The cause was tried to the court and a jury, and a verdict was returned for the defendants. Later the plaintiff was granted a new trial. At the second trial the jury again returned a verdict for the defendants. The plaintiff again interposed a motion for a new trial which however, was overruled. From the judgment entered on the verdict the plaintiff has appealed.

Instruction No. 7 reads: 'You are instructed that the place in Duryea Street in which the accident occurred was not at the time of the accident, an intersection as defined by our statute, and that the operator of the defendants' car had a right under the law to operate his automobile over that portion of the street at a rate of speed not to exceed 20 miles per hour, provided the defendant had no right to operate the car at a rate of speed that would endanger the property of another or the life or limb of any person, and it was his duty at all times to operate his car in a careful and prudent manner.'

The giving of this instruction is assigned as error. Appellant contends that the collision occurred within a street intersection, and that the rate of speed as fixed by statute, at the time and place of the accident, was twelve miles per hour. Section 6339, Rem. Comp. Stat. In order to determine whether the place where the accident occurred was a street intersection we must first determine whether so-called 'Fourth street' is a street within the legal acceptation of that word.

At the time the streets of the city of Raymond were platted, 'Fourth street' was shown or designated on the city plat as a street extending north and south from Duryea street, and at right angles thereto. But 'Fourth street' was never vacated, improved, nor used as a street. Mr. Buckingham, the city engineer of the city of Raymond, called as a witness on behalf of the plaintiff, on his cross-examination testified that 'Fourth street' has 'never been improved or used.' It appears from the evidence that 'Fourth street,' at most, was used merely as a place to accommodate an occasional itinerant circus and to park automobiles.

Webster defines the word 'street' as 'a city road.' Bouvier defines it as 'a road in a village or city.'

'To constitute a street, it must appear from the evidence that the street in controversy is a public way used by the public for street purposes.' City of Rock Island v. Starkey, 189 Ill. 515, 59 N.E. 971, 973.

The term 'public highway' is defined to be '* * * any highway, state road, county road, public street, avenue, alley, driveway, boulevard or other [public] place built, supported, maintained, controlled or used by the public or by the state, county, district or municipal officers for the use of the public as a highway, or for the transportation of persons or freight, or as a place of travel or communication between different localities or communities.' Section 6313, subd. 7, Rem. Comp. Stat.

In passing it may be well to state that the word 'intersection' was not defined by the Legislature until 1927 (Laws 1927, p. 767, § 2), which was subsequent to the date of this accident.

It seems clear that 'Fourth street' at the time of this accident was not a street in the eyes of the law. It was a street on paper only. It was never improved nor used as a street. Traffic never moved north and south on 'Fourth street' across Duryea street, nor entered Duryea street on 'Fourth street' from either the south or the north. In short, the evidence wholly fails to establish that 'Fourth street' was ever used by the public as a road or way for travel or transportation. This being so, it is clear that the place where the accident occurred was not within a street intersection.

The case of Santoro v. Brooks, 121 Or. 424, 254 P. 1019, 1021, in many respects is quite similar to the one here under consideration, the question being whether the place where the accident occurred was a street intersection. The court said:

'There is an issue as to whether the accident occurred upon a street intersection. Defendant contends that at such place a street from the north intersects the highway. There was introduced in evidence a certified copy of dedication of such a street, being 60 feet in width, as shown by official plat and map of Reedville, filed or record August 18, 1879. At the time of the accident, however, this street was but little used and was a dump ground for a broken-down automobile. It was also considered a good place to pile lumber and to keep sand and gravel. During one period in its history it was used as a cow pasture and had been farmed to some extent. A store building with a 30-foot frontage once occupied a large part of the street, but was later removed. As one witness put it: 'This so-called street was all grown up to grass.' * * * Laws of Oregon 1921, c. 371, § 1, subd. 29, defines an intersection: '* * * The point or place where one highway or public way joins another at an angle, whether or not it crosses same.'

'In our opinion, this alleged street, under the conditions existing at the time of the accident, did not constitute a 'highway or public way,' as contemplated by the Oregon Motor Vehicle Law. The place of the accident was not upon a street intersection, within the meaning of the statute, and it was not negligence per se for the Santoro boy so to drive in excess of 12 miles per hour.'

But appellant contends the trial court refused to permit him to introduce testimony and prove that the place where the accident occurred was within a street intersection. We do not so read the record. The learned trial judge accorded to the appellant unlimited latitude to introduce testimony to show the use to which 'Fourth street' was put.

'By the Court: I think he (meaning appellant's counsel) can ask if Fourth Street has been used for travel and what its condition is. * * * It does not matter what it is used for, I think they can show circuses or any kind of travel, that bears on the...