Bredemeyer v. Johnson

• Decision Date: 26 October 1934
• Docket Number: 25009.
• Parties: BREDEMEYER v. JOHNSON et ux.
• Court: Washington Supreme Court

36 P.2d 1062

179 Wash. 225

BREDEMEYER v. JOHNSON et ux.

No. 25009.

Supreme Court of Washington, En Banc.

October 26, 1934

Appeal from Superior Court, King County; W. O. Chapman, Judge.

Action by Edward Bredemeyer, a minor, by and through his guardian ad litem, Phil M. Jensen, against Omund Johnson and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

Shank Belt & Bode, of Seattle, for appellants.

Padden & Moriarty, of Seattle, for respondent.

BLAKE, Justice.

This action is the result of a collision between a motorcycle ridden by plaintiff and an automobile driven by defendant Omund Johnson. The collision occurred about 5:45 p. m., March 25, 1932, in the intersection of Forty-Second Avenue North and Ashworth street, Seattle. The latter street runs north and south; Forty-Second avenue, east and west. Neither is an arterial highway. The intersection is one where a driver's view is obstructed. Rem. Rev. Stat. § 6362-3(b) 2. Plaintiff was traveling east on Forty-Second avenue; the defendant north on Ashworth. From judgment entered upon the verdict of a jury in favor of plaintiff, defendants appeal.

Appellants make sixteen assignments of error, which, for discussion, may be grouped as follows: (1) Insufficiency of the evidence to make a case for the jury; (2) error in sustaining objection to a question propounded to respondent on cross-examination (3) error in giving instructions and error in refusing to give an instruction as requested by appellants.

No contention is made that the evidence is insufficient to take the case to the jury on the question of appellant's negligence. It is asserted that respondent was guilty of contributory negligence as a matter of law. This argument is put upon two grounds: (a) That respondent, being in the disfavored position, failed to exercise reasonable care in entering the intersection, and failed to yield the right of way, as required by section 6362-41(14), Rem. Rev. Stat., and (b) that respondent violated the provisions of a city ordinance relative to the carrying of passengers on motorcycles.

On the evidence, the case is peculiarly one for the jury, with respect to the negligence of both appellant and respondent. The point of impact was to the north and east of the center of the intersection. Each endeavored to avoid the collision by turning away from the other; the appellant turning to his right, the respondent to his left. The result was that the right side of the motorcycle (about the middle) came into contract with the left side of the automobile at a point about midway between the windshield and the front end of the hood. The force of the impact was so great that it was heard a block away. Respondent was thrown to the inside of the sidewalk at the northeast corner of the intersection--a distance of twenty-five or thirty feet. His passenger was hurled a like distance to a point in the parking strip between the curb and sidewalk on the east side of Ashworth street and north of Forty-Second avenue. From these facts, we can draw only one irrefutable deduction: Either appellant or respondent, or both, were going at an excessive rate of speed. The testimony of each points to the other as the offender, at the same time exonerating himself of offense. We are concerned now only with the question as to whether respondent's evidence exonerated him of contributory negligence as a matter of law. Briefly, his evidence on that point is as follows: That Forty-Second avenue approaches Ashworth street from the west on an ascending grade of 4 1/2 per cent.; that the view at the southwest corner of the intersection was obstructed by a slight bank, shrubbery, and a cedar tree which stood in the parking strip on the west side of Ashworth street, about one hundred eight feet south of the south curb line of Forty-Second avenue; that just north of the cedar tree an automobile was parked on the west side of Ashworth street; that at a point just to the west of the west curb line of Ashworth street he slowed down almost to a stop, looked south on Ashworth street, and, there being no approaching cars within the range of his vision (which extended to the cedar tree), he went into second gear and proceeded across the intersection at a rate of about eight miles per hour; that, when he was a little past the middle of Ashworth street, he first saw appellant's car approaching; that the automobile at that moment was at the south line of Forty-Second avenue; that he (respondent speeded up and turned to the left to avoid the impending collision; that the collision occurred when the front wheel of his motorcycle had gotten across the intersection.

We fail to see what other precautions respondent could have taken. He was not only not guilty of contributory negligence as a matter of law, but, if his evidence is to be believed (and the jury did believe it), he was free from contributory negligence as a matter of fact. Hilstad v. City of Seattle, 149 Wash. 483, 271 P. 264; McHugh v Mason, 154 Wash. 572, 283 P. 184; Martin v Westinghouse Electric & Mfg. Co., 162 Wash. 150, 297 P. 1098; Murphy v. Hunziker, 164 Wash. 40, 2 P.2d 270.

An ordinance of the city of Seattle provides: 'Section 14. No person driving or operating a motorcycle of less than three wheels shall carry any other person thereon except upon a seat in the rear of the rider or driver of such vehicle, and no person so riding or driving shall occupy any movable seat or seat cushion or saddle of a temporary character in front of the seat designed and intended for his use.'

The respondent's motorcycle was a singleseated affair. His passenger was sitting upon the seat behind him. Of course the violation of the ordinance constituted negligence. Keller v. Breneman, 153 Wash. 208, 279 P. 588, 67 A. L. R. 92. Whether it amounted to contributory negligence as a matter of law is another question. In some cases, violation of positive law so conclusively appears to be the proximate cause of injury that it will be held to constitute contributory negligence as a matter of law. Keller v. Breneman, supra; Price v. Gabel, 162 Wash. 275, 298 P. 444. But this is not such a case. The theory of appellant is that the passenger interfered with respondent's manipulation of the motorcycle; that but for such interference respondent could have made a quicker shorter turn to the left, and thus have avoided the collision. The evidence is in conflict on this point. It is not at all clear to us that respondent could, under any circumstances, have avoided the collision after he first observed appellant's car entering the...