Billingsley v. Rovig-Temple Co.

• Decision Date: 12 January 1943
• Docket Number: 28750.
• Citation: 133 P.2d 265,16 Wn.2d 202
• Parties: BILLINGSLEY v. ROVIG-TEMPLE CO. et al.
• Court: Washington Supreme Court

133 P.2d 265

16 Wn.2d 202

BILLINGSLEY v. ROVIG-TEMPLE CO. et al.

No. 28750.

Supreme Court of Washington

January 12, 1943

Department 1.

Action by Andrew Billingsley against Rovig-Temple Company and another for injuries to person and property resulting from an automobile collision. Judgment for plaintiff, and defendants appeal.

Judgment reversed with direction to dismiss the action.

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

Bruce Bartley and Max R. Nicolai, both of Seattle, for appellants.

O. R Schumann, of Yakima, for respondent.

STEINERT Justice.

This is an action to recover damages for injuries to person and property resulting from an automobile collision. The cause was tried to a jury, and at the close of plaintiff's case defendants challenged the sufficiency of the evidence and moved for a nonsuit. The challenge was overruled and the motion was denied. On submission of the case to the jury, a verdict was returned in favor of the plaintiff. Defendants thereafter moved for a judgment notwithstanding the verdict and this likewise was denied. Judgment for plaintiff was then entered and defendants appealed.

The assignments of error are all predicated upon the refusal of the trial court to sustain the challenge and grant the motions interposed by the appellants as above stated. The sole question now presented on the appeal is whether the trial court should have granted appellants' motions, on the ground that respondent was guilty of contributory negligence as a matter of law, precluding recovery by him.

A challenge to the sufficiency of the evidence, a motion for nonsuit, motion for a directed verdict, or a motion for judgment notwithstanding the verdict admits the truth of the plaintiff's evidence and all inferences that reasonably can be drawn therefrom, and requires that the evidence be interpreted most strongly against the defendant, and in the light most favorable to the plaintiff. Lindberg v. Steele, 5 Wash.2d 54, 104 P.2d 940; Pierce v. Pacific Mutual Life Ins. Co., 7 Wash.2d 151, 109 P.2d 322; Rieger v. Kirkland, 7 Wash.2d 326, 111 P.2d 241; Fetterman v. Levitch, 7 Wash.2d 431, 109 P.2d 1064; Moen v. Chestnut, 9 Wash.2d 93 113 P.2d 1030; Simmons v. Cowlitz County, 12 Wash.2d 84, 120 P.2d 479.

A court will not be justified in taking from the jury the question of contributory negligence unless the acts committed by the party charged therewith are so palpably negligent that there can be no two opinion soncerning them. Jackman v. Seattle, 187 Wash. 446, 60 P.2d 78; McFarland v. Commercial Boiler Works, 10 Wash.2d 81, 116 P.2d 288; Richardson v. Pacific Power & Light Co., 11 Wash.2d 288, 118 P.2d 985.

With the foregoing rules in mind, we shall state the facts according to the version most favorable to respondent. The collision occurred in mid-afternoon of a clear day, within the intersection of West Chestnut street and South Sixth avenue in Yakima, Washington. These two streets cross each other at right angles.

West Chestnut street, which extends easterly and westerly, is forty feet wide in the block immediately east of the intersection and is paved with oil macadam. South Sixth street, which extends northerly and southerly, is sixty-four and fivetenths feet wide in the block immediately north of the intersection and is paved with cement to a width of forth feet along its central portion, on either side of which is a twelve-foot oil macadam strip. A streetcar track runs along the west half of South Sixth street, parallel with, and very near, the center line thereof, leaving a twelve-foot space between the west rail and the westerly edge of the cement pavement, or approximately a twenty-four foot strip between the rail and the westerly curb. Both streets are practically level, and neither is an arterial highway. At the time involved here, the streets were dry.

Respondent, driving his 1938 Dodge sedan, approached the intersection from the east, along West Chestnut street, at a speed of fifteen miles an hour. For a distance of at least seventy-eight feet eastwardly from the intersection there was nothing to obstruct his vision towards the north. A truck, owned by appellant Rovig-Temple Co. and driven by its employee, appellant John Reed, was at the same time approaching the intersection from the north, along South Sixth street. Thus, the truck was on the right-hand side of the respondent. There was no other traffic in sight to divert the attention of either driver.

Respondent maintained his course along West Chestnut street into the intersection, and about the time that his front wheels reached the easterly edge of the cement pavement, twelve feet west of the easterly curb, he for the first time looked to his right and saw appellants' truck approaching from the north, at a distance of one hundred feet from the intersection and at a speed of thirty miles an hour. This was according to respondent's own estimate.

Thus it appears that from the point where respondent first observed the approaching truck, he himself still had fifty feet or more to traverse in order to clear the intersection entirely, while the truck had to go but one hundred feet to reach the same intersection; further, that while the truck was twice as far away from a point common to the courses of the two motor vehicles, its speed was twice that at which respondent was then travelling.

In that situation, respondent proceeded on his course, towards and across the center line of the intersection, maintaining his former speed of fifteen miles an hour, but at the same time keeping the truck under continuous observation and noting that it also was proceeding forward along its course of travel without slackening its speed of thirty miles an hour. According to respondent's testimony, 'It come right on; it come right on and so did I.'

As the front wheels of respondent's car crossed the center line of the intersection, respondent for the last time took notice of the truck, which was then but sixty feet away. Thus respondent still had more than thirty feet to go in order to clear the intersection entirely, while the truck had but sixty feet to travel Before reaching the margin of the intersection; the speed of the truck was, however, still twice that at which respondent was travelling. The hydraulic brakes on respondent's car were in perfect condition and, according to his own testimony, he could have brought the car to a dead stop within the distance of a foot.

After crossing the center line of the intersection, respondent continued driving forward at the same speed as Before , and while his car was still completely within the intersection it was struck upon its rear right wheel by the on-coming truck. According to respondent's testimony, the driver of the truck apparently was unaware of respondent's car until he was 'right on him.' As the result of the collision, respondent sustained the injuries and loss for which this action was brought.

It is conceded by appellants that the evidence was sufficient to warrant the jury in finding the driver of the truck guilty of negligence in one or more respects. Appellants contend, however, that respondent's evidence, considered in the light most favorable to him, clearly demonstrates that he was guilty of contributory negligence as a matter of law, in that (1) he failed to obey the statutory mandate imposing on him the duty to look out on approaching an intersection; (2) he disobeyed the statutory command requiring the driver on the left to yield the right of way to the driver on the right simultaneously approaching the intersection; (3) he proceeded across the intersection without having regard to the maintenance of a reasonable margin of safety for his own protection; and (4) he failed to stop when he must have realized his dangerous position.

The basic rule underlying the first two grounds of appellants' contentions is prescribed by Rem.Rev.Stat., Vol. 7A, § 6360-88 (P.C. § 2696-846) which provides: 'It shall be the duty of every operator of any vehicle on approaching public highway intersections to look out for and give right of way to vehicles on their right, simultaneously approaching a given point within the intersection, and whether such vehicle first enter and reach the intersection or not: Provided, This section shall not apply to operators on arterial public highways.'

Construing an earlier statute (Remington's 1927 Sup., § 6362-41, subd. 14), the language of which is almost identical with § 6360-88 above quoted, this court in the case of Strouse v. Smith, 166 Wash. 643, 8 P.2d 411, 412, held that the failure of the driver of a vehicle approaching a public highway intersection to look out for and give the right of way to a driver on his right constituted contributory negligence as a matter of law. We quote a portion of that opinion:

'Respondent's testimony conclusively establishes the fact that, except for his contributory negligence in failing to comply with the statute above referred to, the injury would not have occurred. He did not, when approaching the public highway intersection, look out for and give right of way to the vehicle on his right. He does not claim to have looked to the right until the front end of his car came into the intersection. * * *

'The testimony in the case clearly demonstrates that, except for the failure of respondent, when approaching the intersection, to look out for and give right of way to the vehicle on his right, he would have sustained no injuries. We hold, as a matter of law, that respondent was guilty of contributory negligence, and that the trial court erred when it granted a new trial on the ground that it had erred in sustaining appellants' challenge to the sufficiency of the evidence.'

In Snyder v. Smith, ...