Bissell v. Seattle Vancouver Motor Freight

• Decision Date: 18 April 1946
• Docket Number: 29717.
• Citation: 25 Wn.2d 68,168 P.2d 390
• Parties: BISSELL v. SEATTLE VANCOUVER MOTOR FREIGHT, Limited.
• Court: Washington Supreme Court

168 P.2d 390

25 Wn.2d 68

BISSELL v. SEATTLE VANCOUVER MOTOR FREIGHT, Limited.

No. 29717.

Supreme Court of Washington

April 18, 1946

Department 2

Action by Harry Bissell against Seattle Vancouver Motor Freight Limited, a corporation, for damages arising out of automobile collision. From judgment for defendant, plaintiff appeals.

Affirmed.

Appeal from Superior Court, King County; Hugh C. Todd, Judge.

Cornelius C. Chavelle, of Chavelle & Chavelle, all of Seattle, for appellant.

Truscott & Bovingdon, of Seattle, for respondent.

JEFFERS Justice.

This action was instituted by Harry Bissell, in the superior court for King county, against Seattle Vancouver Motor Freight Limited, a corporation, to recover damages for injuries to his person and property alleged to have resulted from the negligent operation of a truck and trailer owned and operated by defendant, and being driven at the time of the accident by defendant's agent, Charles Creelman. The alleged negligence of defendant consisted of the operation of the truck and trailer in a reckless and careless manner on the streets of Seattle, in that the motor vehicle did not display red lights or any lights whatsoever on the rear thereof, as required by law, and in that defendant failed to use due care or any care whatsoever in determining whether the rear end of the motor vehicle was equipped with lights or reflectors, as required by law, and in that the motor vehicle failed to carry any lights whatsoever, and failed to carry any lighted lights on the rear thereof.

Defendant by its answer denied all allegations of negligence contained in the complaint, and denied that any injuries plaintiff may have received resulted from any negligence of defendant or its agent.

Defendant alleged affirmatively that if plaintiff sustained any injuries or damage, the same were proximately caused or contributed to by his own negligence, which negligence consisted of driving his automobile at an unlawful rate of speed, considering the conditions then and there existing at the point of operation, in failing to keep a lookout for other users of the highway, in failing to keep his car under control, in failing to have his car equipped with adequate brakes, and in failing to exercise any care or caution to avoid an accident when the imminence of such an accident should have been apparent to plaintiff.

The cause came on for hearing on March 27, 1945, Before the court and jury.

The accident occurred in the 1600 block on Aurora avenue, in the city of Seattle, shortly after nine o'clock P.M., August 21, 1944. The night was clear, but dark, and the pavement was dry. The 1600 block on Aurora begins at Garfield street on the south, and extends north about 420 feet to what is marked on plaintiff's exhibit 1 as gravel driveway. At this point Aurora avenue has four lanes used by northbound traffic. The right hand lane, or the one next to the curb, is seven feet wide, and was referred to by Mr. Wilkins, who perpared exhibit 1, as a parking lane. Immediately to the left of the parking lane are three ten foot traffic lanes for northbound traffic.

There is a standard bracket street light at the intersection of Garfield street, which overhangs the parking lane, and another light 420 feet north, in the same position relative to the highway. There is a slight grade to the north on Aurora in the 1600 block.

Charles Creelman, on the night of the accident, was driving the truck and trailer here involved for defendant, having started on his regular run to Vancouver, B. C., and at the time of the trial Creelman was still driving the same truck and trailer on the Vancouver run. Creelman testified that there were headlights on the truck and eight clearance lights, six clearance lights on the trailer and two tail lights; that there were two reflectors on the back of the trailer and one on each bottom corner. Exhibits 2, 3, 4 and 5 were identified by this witness as being pictures of the truck and trailer taken a month or two prior to the trial. The witness stated they showed the equipment as it was the night of the accident; that there had been nothing added in the way of lights since the accident. The witness was asked to and did point out on the exhibits where the different lights and reflectors were, and an inspection of the exhibits bears out the witness' testimony.

Greelman left the terminal on the night in question about nine o'clock P.M. He did not check the equipment Before he left, to ascertain whether or not the lights on the trailer were working, as that was part of the duties of other employees of defendant, and Creelman assumed it had been done. Before he left the terminal Creelman turned on his lights and the headlights were burning, but, as stated, he did not go back and look to see whether or not his trailer lights were burning.

At this point we shall refer to the testimony of Austin Braley, who, on the night of the accident and at the time of trial, was shop foreman for defendant. This witness testified that it was part of his duties to check lights, brakes and all running equipment, to make sure it was suitable for the road; that on the night of the accident, John Thorsteinso helped him hook up the truck and trailer here involved. Mr. Braley described how the hook-up was made, as follows:

'It takes two men, it requires two men normally to hook up a truck and trailer. I backed the truck into the trailer and he [Thorsteinso] made the coupling, secured the chains and trailer hitch and light switch. He went on some other duty and I doublechecked it for brakes, lights and running equipment.'

Mr. Braley further testified that he turned on the lights and that the trailer lights worked, as well as the truck lights; that all lights were working; that about thirty minutes later Creelman left the terminal.

Mr. Thorsteinso, who assisted Mr. Braley in hooking up the truck and trailer, stated that the light cable from the trailer is connected with the truck by inserting the prongs on the light cable into a socket on the truck underneath the frame. In making the trailer hitch there are two brake hoses which are connected up with the truck. This witness further stated that he checked the light connections and brake connections at the time he made the hook-up. He did not actually turn the lights on.

When the operator of the truck turns on the truck lights the trailer lights are also turned on, and when the brakes on the truck are applied the trailer brakes are automatically applied. In other words, all lights are turned on by one operation, and the same is true as to the brakes.

There is no dispute in the evidence as to what was done in the way of checking the running equipment on the truck and trailer about thirty minutes Before Creelman left the terminal, nor as to the equipment then on the truck and trailer.

As stated, Creelman turned on his lights Before leaving the terminal, and proceeded down Alaskan Way, eventually coming to Aurora avenue, where he was traveling north on the first traffic lane to the left of the parking lane, at about ten or fifteen miles per hour. He testified that he felt a slight jar, after which he pulled ahead a little and then over into the parking lane next to the curb, and stopped. He got out of his truck and saw plaintiff's car about one hundred feet back of him. The left headlight on plaintiff's car was burning. Creelman then noticed that the tail lights on the trailer were not burning. He went back to see the people in plaintiff's car, after which he returned to his truck and examined the plug on the trailer light cable, and found a wire disconnected from one of the screws. He connected up the wire and got lights on the trailer. Mr. Creelman further testified that when he got out of his truck after the accident, the clearance lights and tail lights on the truck were on. In other words, according to the testimony of this witness, the trailer lights were the only ones which were not on after the collision.

Plaintiff is a taxi driver, and at the time of the accident was working for Far West Cab Service, and was with that company at the time of trial. On the evening of August 21, 1944, he drove to the company's office to go to work, but as there was no cab available for him, he started home. He was driving his own 1934 Ford V-8 sedan, and left the office about nine P.M. Riding with him in the front seat was John Brest, and in the back seat Ernest Stucky. Both of these men were also taxi drivers.

Plaintiff was familiar with Aurora avenue. Just Before the collision he was driving north on Aurora in the first lane to the left of the parking lane, at about thirty miles per hour. He had his headlights on low beam, commonly known as 'city beam.' He stated he could see lighted objects three or four hundred feet, and unlighted objects ten or fifteen feet ahead of him. According to plaintiff, the accident occurred near the steps that lead from Aurora down to Garfield, which would be near the light at Garfield and Aurora, to which we have referred. Plaintiff testified that this light was not burning; that he first became conscious of something ahead of him when he was ten or fifteen feet from the trailer. His language was: 'I first saw the flash of something in front of me. What it was I didn't know.' He put on his brakes and turned to the left, but did not succeed in missing the trailer.

On cross-examination the witness was asked, among others, the following questions:

'Q. You should look ahead to see where you are traveling? A. That is right.

'Q. You were not just Before the accident? A. No.

'Q. Is it not true you just dropped your eyes and looked at the generator? A. Not a second's glance.

'Q. Just at the time when you were within a few feet of...