Blood v. Austin

• Decision Date: 05 September 1928
• Docket Number: 21148.
• Parties: BLOOD v. AUSTIN et ux.
• Court: Washington Supreme Court

270 P. 103

149 Wash. 41

BLOOD v. AUSTIN et ux.

No. 21148.

Supreme Court of Washington

September 5, 1928

Department 1.

Appeal from Superior Court, Grays Harbor County; Wm. E. Campbell Judge.

Action by Carrie Belle Blood, as administratrix of the estate of Alvin H. Blood, deceased, against O. R. Austin and wife. Judgment for defendants, and plaintiff appeals. Affirmed.

W. H Abel, of Montesano, and A. M. Abel, of Aberdeen, for appellant.

Theodore B. Bruener, of Aberdeen, for respondents.

MITCHELL J.

This action was brought against the driver of an automobile and his wife on account of his alleged negligence, causing the death of an invited guest. The trial court directed a verdict for the defendants, on the ground that it must be held as a matter of law that the evidence was insufficient to show gross negligence or wanton injury on the part of the driver. The plaintiff has appealed from a judgment on the verdict.

Dr. O R. Austin will be spoken of as the respondent. He and his wife invited Mr. and Mrs. Blood to join them in a trip from Aberdeen to Port Townsend and return, in the month of December, to attend a meeting at Port Townsend, assisting in the organization of a women's auxiliary to the Spanish-American War Veterans' organization. Returning from Port Townsend, they left about 8 o'clock in the morning; respondent driving the car, with Mr. Blood on the front seat with him. The ladies occupied the rear seat. The automobile was a seven-passenger Studebaker touring car. All of the parties were close friends of several years' standing and the Bloods had frequently joined the Austins in automobiling, with the doctor driving.

Mrs. Blood testified that during the first 20 miles on the return trip the respondent was cautioned several times by others in the car about driving too fast. That he was thus cautioned was denied by him and his wife. In this respect, however, as well others, we accept the testimony most favorable to the appellant. The weather was cold, below freezing, and appellant testified that the respondent drove rather fast, by spurts. About two miles further on the accident happened, on a right-hand curve in the highway. All along, the road was in good condition. It was a graveled road; the traveled portion being 20 feet wide. Two hundred and fifty feet from the curve there was the usual caution sign of 'Curve 250 feet.' Appellant testified that the respondent started to speed up about 100 to 200 feet from the sign, at which time his speed was estimated at 30 to 40 miles an hour, at which time her husband asked him to go slow. She testified:

'Q. When did your husband ask him to go slow? A. When he saw he was speeding up. He probably saw the sign ahead when he told him.

'Q. After you made a protest, or your husband made the protest, did he start to slow down then? A. Yes.

'Q. When Mr. Blood made the protest against his fast driving, what did he say--those few seconds before the accident occurred, and when the doctor, you say, started to speed up. What did Mr. Blood say? A. He said, 'You are going a little too fast, Doc.'

'Q. And then the doctor started to slow down? A. Sure.

'Q. He did? A. Yes, sir. * * *

'Q. If I understand the situation correctly, when Mr Blood made this protest, or told Dr. Austin, 'Doc, you are going a little too fast, Doc,' the doctor started to slow down, but couldn't

...