Boyle v. Lewis
| Decision Date | 10 May 1948 |
| Docket Number | 30379. |
| Citation | 30 Wn.2d 665,193 P.2d 332 |
| Parties | BOYLE v. LEWIS et ux. |
| Court | Washington Supreme Court |
Department 2
Action by James Boyle, by Argie Boyle, his guardian ad litem against Joseph Lewis and Jane Doe Lewis, his wife, whose true Christian name was to the plaintiff unknown, to recover for injuries sustained by James Boyle in a collision between an automobile in which he was riding and an automobile of the defendants. From a judgment for plaintiff, defendants appeal.
Judgment affirmed.
Appeal from Superior Court, King County; B. B Horrigan, Judge.
N. A. Pearson, of Seattle, for appellant.
Houghton Cluck, Coughlin & Henry, of Seattle, for respondent.
This is an action instituted by Argie Boyle, as guardian ad litem of James Boyle, against Joseph Lewis and wife, to recover damages for injuries received by James Boyle as the result of a collision between a car in which he was riding, the car being driven at the time of the accident by Jack Carlson, and a car being operated by defendant Joseph Lewis. It was alleged that the accident occurred in the intersection of Twenty-second avenue north and East Prospect street, in Seattle, Washington, on June 8, 1946, at about one-thirty A.M. It was further alleged in the complaint that at the time of the accident James Boyle was riding in the automobile as a guest of his friend, Jack Carlson. The basis of the complaint was the alleged negligence of defendant Joseph Lewis.
Lewis and wife, by their answer, denied the material allegations of the complaint. and as an affirmative defense, alleged that at the time of the collision, plaintiff was on a joint venture with the driver of the car in which he was riding, and that the negligence of the driver became the negligence of plaintiff. The answer then set out the claimed acts of negligence on the part of Carlson, the driver of the car.
Plaintiff, by his reply, denied the affirmative allegations of the answer.
The cause came on for hearing on June 11, 1947, Before the court and jury.
East Prospect street runs east and west, and Twenty-second avenue north runs north and south. The paved portion of each street is twenty-five feet wide. Prospect street, as it approaches the intersection from the east, has an upgrade of nine per cent, and Twenty-second avenue, as it approaches the intersection, has an upgrade of four per cent. On the northeast corner of the intersection there is a bulkhead and hedge, which obstructs the view of a driver approaching the intersection from either the east or the north.
C. E. Beech, a traffic investigator for the Seattle police department, who arrived at the scene shortly after the acccident, stated that one driving west on Prospect could not see north on Twenty-second avenue as he approached the intersection until he got up to within three or four feet of the sidewalk line.
At the time of the accident, Jack Carlson was driving his mother's car. Riding with him in the front seat was plaintiff, and in the back seat was Ed Bush and his girl friend, Gloria.
There is no question but that plaintiff was riding with Carlson as a guest. There is absolutely no evidence in this case which would establish the relationship of Carlson and plaintiff as that of joint adventurers, under the rules announced in Carboneau v. Peterson, 1 Wash.2d 347, 95 P.2d 1043.
The night was dark and it was raining. Carlson stated that as he approached the intersection, driving south on Twenty-second avenue, his headlights were on and his windshield wipers were working. There is a street light on a pole at the southwest corner of the intersection.
Carlson stated that it is necessary to get almost into the intersection Before one can see down Prospect to the east; that as he approached the intersection he put his car in second gear and slowed down to about fifteen miles per hour; that he looked to the right and then to the left, but could not see anything to left on account of the bulkhead; that he then proceeded into the intersection; that he again looked to the left Carlson remembered what happened up to the time of the crash, but did not remember what happened afterwards, as he was rendered unconscious.
'
Carlson thought his car was about in the middle of the intersection when it was struck on the left side by the Lewis car.
On cross-examination, Carlson stated that he turned on to Twenty-second avenue about three blocks north of the intersection; that as he proceeded south toward the intersection, he was driving about twenty miles per hour; that he was tending to his driving, and not talking to the other passengers; that as he approaches a blind intersection he usually puts his car in second gear. Carlson had just had his brakes adjusted two days Before the accident.
James Boyle stated that Carlson asked him to ride with him. The witness, after relating where they had been the first part of the evening, stated that they came into Twenty-second avenue about three blocks north of the intersection. As they approached the intersection from the north, Carlson was driving to the right of the center.
'Q. And when did you first see this car of Mr. Lewis? A. Well, we hit. I looked. And I was through the windshield. I was turned to my left in talking to some fellows in the back.
'Q. About how fast was Mr. Carlson driving as he came to and entered that intersection? A. About 18, 20 miles an hour. * * * 'Q. You say you were sitting in the front seat and turned to your left, speaking to the parties--A. (Interposing) Yes.
The witness stated that the lights on the Carlson car were burning as they entered the intersection.
On cross-examination, Boyle stated that he had no driver's license and did not drive.
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The witness stated he did not see any cars parked along the street. Boyle stated that when he felt the car slow down he turned around and looked to the front, and went through the windshield. He stated that the was not surprised when the car slowed down, as Carlson had shifted into second gear at the intersection Before the one here in question; that he saw the Lewis car just as it hit them, and then saw it again as he was sitting on the curb after the accident.
Mr. Lewis stated that on the night of the accident he turned left onto Prospect street from Twenty-third avenue; that from Twenty-third to Twenty-second avenue on Prospect there is an upgrade of about nine per cent; that he went into second gear as he approached the intersection of Twenty-second and Prospect. He stated that the northeast corner of the intersection is obstructed; that there is quite a high hedge and trees along the north side of Prospect, and trees on the east side of Twenty-second avenue; that he was traveling at about fifteen to twenty miles per hour as he approached the intersection.
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