Bracy v. Lund

• Decision Date: 02 December 1938
• Docket Number: 27043.
• Parties: BRACY v. LUND et al.
• Court: Washington Supreme Court

84 P.2d 670

197 Wash. 188

BRACY v. LUND et al.

No. 27043.

Supreme Court of Washington, En Banc.

December 2, 1938

Action by Hortelia Bracy against Charles A. Lund and Smart's Auto Freight Company, Inc., for injuries received in automobile collision. From a judgment on a verdict for the individual defendant, but against the corporate defendant the corporate defendant appeals.

Reversed and cause dismissed.

BLAKE MILLARD, and HOLCOMB, JJ., dissenting.

Appeal from Superior Court, Pierce County; Ernest M. Card, judge.

Poe Falknor, Emory & Howe, of Seattle, for appellant.

S. A Gagliardi, of Tacoma, for respondent.

ROBINSON Justice.

This is an action to recover damages for personal injuries.

A truck and trailer were stalled on a bridge of such width that a space of at least 23 feet was left for other traffic. Two meeting automobiles, for some reason, found that space insufficient to pass each other and came into a head-on collision, or, rather, a partly head-on collision, since photographs of the automobiles show that the front wheel, running-board, and fenders were stripped off the left, or driver's side, of each car. Neither automobile came in contact with the truck or trailer.

Hortelia Bracy, a passenger in one of the automobiles, brought this suit against Charles A. Lund, the driver of the other, and joined Smart's Auto Freight Company, Inc., the owner of the truck, as an additional defendant. The jury exonerated Lund, but returned a verdict against the auto freight company. It prosecutes this appeal from the judgment rendered thereon.

The truck and trailer, being of an overall length of 65 feet, were standing at the easterly end of the long bridge which carries the Pacific Highway over the Puyallup river and its adjacent flats. Going toward Seattle, the bridge proper ends with the river span, and an incline, 560 feet long leads down a five per cent grade to the double roadway. The truck was standing on the incline and the trailer was still on the level bridge. At that point, the roadway is 36 feet in width and so continues for a distance of 431 feet down the incline. There, the sidewalks come to an end and the roadway becomes 44 feet wide. About 130 feet farther on, the roadway divides into two 22 foot strips of pavement, with a gravel strip 2 or 3 feet wide between them, and so continues toward Seattle. On the bridge, the yellow line is in the middle of the roadway, leaving a space of 18 feet on each side. Near the bottom of the incline, the line splits into two outward curving lines, each of which leads to, and continues along, the middle of the two 22 foot strips of pavement which constitutes the Tacoma-Seattle road. One approaching the truck and trailer from Tacoma could have been the rear of the trailer for at least 1,000 feet, and one approaching them from the opposite direction could have seen the front of the truck for a long distance, for in that direction the road is practically straight for several miles. At the time, the truck's marker lights were burning, and from various parts of the truck and trailer twenty-seven small green lights showed ahead and seventeen red lights showed behind. It was just past daybreak, and the truck and trailer could have been plainly seen for a long distance had they carried no lights at all.

Klimmer, the driver of the truck, had brought the truck and trailer from Portland during the night, having left there at 8 the previous evening, January 19, 1937. He testified that it was a cold night and that, when he arrived at that point on the bridge, his diesel engine stopped dead. When this occurred, the truck had entered upon the incline, and, although the trailer was still on the level bridge, he could have coasted down the incline, but could not have reached a place where he could have gotten entirely off the paved portion of the roadway. As his truck and trailer would constitute a greater obstruction to traffic coming from the rear than to traffic coming from the other direction, he thought it best remain on the bridge where cars coming from the rear could see him for a greater distance. He put out three flares, of the kind commonly used to give warning on construction jobs, one near the front of the truck, one at the rear of the trailer, and one at the side about where the vehicles were coupled together. Several witnesses testified to having seen one or the other of these flares. On the other hand, several witnesses testified that they saw no flares. But none of them was willing to assert that they were not there.

There is a conflict in the evidence as to how far the truck stood from the righthand, or south, curb. Klimmer, the driver, said the truck and trailer were right up against the curb. Lund testified to the same effect. Ray, a disinterested witness who rushed over to the scene from Bunge's Service Station about 500 feet beyond the incline, testified that it was 'as close to the curb as one could get.' Officer Rodius, who drove the police ambulance, testified that the truck and trailer were standing within a foot or 18 inches of the south curb. However, Officer McDougal, who accompanied Rodius on the ambulance, testified that, according to his recollection, the truck was over from 4 to 5 feet from the curb. Even if that be true, since the truck and trailer were slightly less than 8 feet in overall width, this still left from 23 to 24 feet of unoccupied roadway; that is, a space from 3 to 4 feet wider than the paved surface of the majority of the hard-surfaced roads of this state, and 5 to 6 feet wider than the surfaced portion of our oiled roads.

After the truck stalled, the driver placed his flares and crawled underneath the truck with a blow torch to thaw out the fuel line. As he worked, cars passed in both directions. After he had been so occupied for ten or fifteen minutes, he heard a crash. As he stuck his head out from under the left side of the truck, a tire came whizzing by from in front, nearly striking him in the face. He found Lund's car 15 or 20 feet out ahead of the truck and completely south of the yellow line. The other car had passed the truck and trailer and was near the north curb, the distance between the two automobiles being approximately 100 feet. Neither car had come into contact with the truck or the trailer.

Lund testified that he was on his way to Seattle. When he came around the curve on the bridge, he saw the truck and trailer about 1000 feet ahead of him, all lit up and standing right at the top of the incline. He knew they were standing because of the warning flares burning in the roadway. He slowed down and approached them at about 15 miles per hour, and seeing that there was plenty of room to pass, pulled to the left. Just as he got past the front of the truck, a car, coming up the incline at 50 or 60 miles an hour and astride the yellow line, collided with him. He testified that at no time did he go north of the yellow line in passing the truck and trailer. If the testimony of Klimmer, Ray, and Officer Rodius as to the position of the truck with reference to the south curb be accepted, as contrasted with the testimony of McDougal, there would have been no necessity for Lund to go north of the yellow line, because in that case, there was a space between it and the truck and trailer of 8 1/2 to 10 feet.

If Lund's account of the collision is true, and the jury must have accepted the substance of it at least, for they returned no verdict against him, the driver of the other car must have been negligent in the extreme. What the jury thought about that, we have no means of knowing, since he was not a party to the action. It is necessary for us, however, to consider the matter in order to pass upon the appellant's contention that the standing truck and trailer was a condition and not a cause of the accident.

Reynolds the driver of the west-bound car, testified that he did not know how many times he had been convicted of crime, but admitted three convictions when they were specifically called to his attention. Having had one or two beers and a drink of whisky during the previous evening, at about 11 o'clock he took his guitar and a white girl friend and went out to the Wagon Wheel, a roadhouse a little west of the Seattle-Tacoma road, about 9 miles out of Tacoma. Here, in a three-story building, an all-night party was in progress. The crowd, variously estimated at from one hundred fifty to two hundred, about half colored and about half white, were dancing and otherwise diverting themselves. The proprietor, who was called as a witness, stoutly maintained that he did not operate a bar and sold no liquor on the premises, but testified that he had five private rooms which people could rent and do what they pleased therein, and it was their business whether they drank liquor or not. All these rooms were in full blast. Reynolds did not take advantage of these accommodations, but confined his drinking strictly to lemonade. Just Before daylight Reynolds was ready to start home. His girl friend sat with him in the front seat. Another colored man named Cravens was in the rear seat witl a white girl named Vera; also the respondent and her fiance, a colored porter named Edmonson who at one time had been a shipmate of Reynolds. The white girls were not called as witnesses. The respondent could give no account of the collision, as she was asleep Before it happened and unconscious afterwards. Cravens was called, but shed no light on the matter, since he also was asleep when the collision occurred, and, when thus rudely awakened, immediately stepped out of the car and departed without lingering about for any purpose whatsoever. Edmonson, although he had not slept for two days, was wide awake and saw the truck and trailer when they were over...