Berndt v. Pacific Transport Co., 31532

• Citation: 231 P.2d 643,38 Wn.2d 760
• Decision Date: 24 May 1951
• Docket Number: No. 31532,31532
• Court: United States State Supreme Court of Washington
• Parties: BERNDT et ux. v. PACIFIC TRANSPORT CO., Inc. et al.

Page 760

38 Wn.2d 760

231 P.2d 643

BERNDT et ux. v. PACIFIC TRANSPORT CO., Inc. et al.

No. 31532.

Supreme Court of Washington, Department 1.

May 24, 1951.

R. D. Kendall, Wenatchee, for appellant.

Bernice Bacharach, Wenatchee, for respondent.

BEALS, Justice.

Plaintiffs in this action, Henry and Lydia Berndt, were, at all times herein mentioned, husband and wife, residing at Wenatchee.

The defendant Pacific Transport Company, Inc., is a Washington corporation (herein referred to as Pacific), and defendant Charles W. Struck was in the employ of that company during the month of March, 1949.

At about seven o'clock a. m., March 16, 1949, plaintiffs left their home in their automobile, intending to drive to Everett over the Stevens pass highway.

At about four o'clock a. m., the same morning, Struck, driving Pacific's truck and trailer loaded with fuel oil, left Richmond Beach in King county, intending to drive to Omak along the Stevens pass highway. There was no snow on the road until Struck approached the steep ascent to the summit on the west side of the pass. He testified that, at this point, he stopped the truck and put chains on the rear tires of the truck. When the truck was somewhere within two miles of the summit, Struck met a snowplow working down the road and turned the truck onto the shoulder of the road into soft snow to give the plow room to pass. When he tried to start the truck, it had no traction, and an examination disclosed the fact that the chain on the left rear wheel had been lost. After receiving some help from the operators of the snowplow, Struck proceeded on his way, and, upon reaching the crest of the road, made inquiry as to the condition of the road on the east side of the mountain. He was informed by a state highway employee that chains were unnecessary, whereupon he removed the remaining chain, informing the highway official that he had lost one of the chains.

Struck proceeded along the road, generally downhill, and found little snow until he reached a point about two thirds of the way up what is known as the Grasslake grade and about five hundred feet west of a curve in the road to the left. At this point, the truck lost traction and stopped. Struck set the brakes, but the truck slid backward and sideways toward the north side of the road, with the result that the truck and trailer stopped in a jackknife position, with the bend toward the north side of the highway, effectually blocking most of the paved portion of the highway.

Struck dismounted from the cab, taking a fusee, but testified that almost immediately he saw plaintiffs' car proceeding west along the highway at a distance of from three hundred fifty to four hundred feet from the truck and trailer. Struck walked toward the car, signaling the driver to stop, but the car continued on its way and collided with the stalled truck. The plaintiffs suffered serious personal injuries, and their automobile was wrecked.

At the place of the collision, the paved portion of the highway is twenty-two feet wide, the south shoulder being eleven feet in width and that on the north eight feet.

Plaintiffs instituted this action against Pacific and Mr. and Mrs. Struck, alleging in their amended complaint, which stated two causes of action, that Pacific's employee had negligently left the truck and trailer standing upon the truck's left-hand side of the highway, completely blocking the road; that plaintiffs, proceeding around a sharp curve, suddenly approached the truck, and that, without fault on the part of plaintiffs, their car collided with the front of the truck, resulting in injuries to plaintiffs and in damage to their car.

The damages demanded in plaintiffs' first cause of action were itemized and included seven hundred dollars' damage to the car, hospital and doctor bills, dental services to be incurred, medicines, surgical operation expenses, loss of earnings past and future, and other damages suffered by Mr. Brendt, including five thousand dollars on account of 'pain, suffering and nervous shock,' a total of $8,341.

Plaintiffs then, by a second cause of action, alleged that plaintiff Lydia Berndt had been severely and permanently injured, to plaintiffs' further damage in the sum of $22,366.23, which included her hospital and doctor bills, future medical expenses, loss of earnings in the sum of five thousand dollars, and other items, including 'permanent injuries, pain and suffering, shock, scars and permanent incapacity,' estimated at fifteen thousand dollars.

By their second amended answer to the amended complaint, defendants admitted the corporate existence of Pacific Transport Company, Inc., and that plaintiffs were husband and wife, denying the other material allegations in both causes of action set forth in plaintiffs' amended complaint, and particularly denying all negligence on the part of Pacific or Struck, its employee.

By way of a first affirmative defense, defendants pleaded contributory negligence on the part of plaintiffs in operating their automobile, and alleged that any damage suffered by them was due to their own negligence.

For a second affirmative defense, defendants alleged that defendant Struck was at all times operating the truck and trailer in a cautious and careful manner and at proper speed, on his right-hand side of the highway, and that suddenly, without warning, the truck and trailer 'jackknifed,' so that the front end of the trailer went to the left of the highway, throwing the real end of the truck likewise to the left, blocking a portion of both the right and left sides of the highway, but leaving sufficient room for a car to pass either to the right or left of the truck and trailer, if the car was traveling in a lawful, cautious, and careful manner; that, because of the slippery condition of the highway and new snow, defendant Struck was unable to bring the truck and trailer out of its jackknife position before being struck by plaintiffs' automobile; and that the accident was unavoidable and without fault on the part of Pacific or its employee.

Plaintiffs replied to the affirmative defenses contained in defendants' second amended answer, denying the affirmative allegations therein contained.

The action was tried to a jury, which returned a verdict in plaintiffs' favor against all of the defendants in the amount of $8,491.23, $7,291.23 being 'Damages for Lydia Berndt,' and $1,200 'Damages for Henry Berndt.'

Defendants' motions for judgment in their favor notwithstanding the verdict or, in the alternative, for a new trial having been denied, judgment was entered in plaintiffs' favor upon the verdict, from which judgment defendants have appealed, making the following assignment of errors:

'(1) The Court erred in refusing to sustain defendants' demurrer to evidence; challenge to sufficiency of the evidence; and motion for nonsuit and for dismissal made at the end of plaintiffs' case.

'(2) The Court erred in denying the defendants' motion for a directed verdict or in the alternative for a nonsuit challenging the sufficiency of the evidence, at the close of the case.

'(3) The Court erred in denying defendants' motion for judgment notwithstanding the verdict, and in the alternative for a new trial.

'(4) The Court erred in entering judgment against the defendants.'

Appellants' assignment of error No. 1 is without merit. The trial court was clearly correct in overruling the motions made by appellants at the close of respo...