Brewer v. Berner, 28849.

• Court: United States State Supreme Court of Washington
• Citation: 15 Wn.2d 644,131 P.2d 940
• Docket Number: 28849.
• Parties: BREWER et al. v. BERNER et al.
• Decision Date: 16 December 1942

131 P.2d 940

15 Wn.2d 644

BREWER et al.
v.
BERNER et al.

No. 28849.

Supreme Court of Washington

December 16, 1942

Department 2.

Action by Hazel Brewer and P. R. Brewer, her husband, against Harry Paul Berner, Jr., and another for personal injuries to plaintiff Hazel Brewer, and damage to an automobile owned by both plaintiffs. Judgment for defendants, and plaintiffs appeal.

Reversed and new trial granted.

Appeal from Superior Court, King County; James B. Kinne, judge. [131 P.2d 941]

Kennett & Benton, of Seattle, for appellants.

Shank, Belt, Rode & Cook, of Seattle, for respondents.

SIMPSON, Justice.

Plaintiffs instituted this action to recover compensation for personal injuries to Hazel Brewer and damages to an automobile driven by her and owned by plaintiffs, the injuries and damages [15 Wn.2d 645] being sustained in collision with an automobile driven by the defendant Harry Paul Berner, Jr.

Plaintiffs allege that defendant Harry Paul Berner, Jr., employee and agent of defendant Star Machinery Company, was negligent prior to and at the time of the accident in failing to keep any lookout in the direction in which he was proceeding, to yield the right of way across an intersection, to sound any warning of his intention not to yield the right of way, in driving his car at a high and unlawful rate of speed, in turning his automobile and driving it into the car driven by plaintiff and in failing to drive his automobile in a reasonable, careful and prudent manner.

In their answer defendants denied the charges of negligence, and alleged that plaintiff's injuries, if any, were caused by the negligence and carelessness of plaintiff Hazel Brewer; that she was negligent in the following particulars: In entering into an arterial highway without first bringing the car which she was driving to a complete stop; in attempting to cross an arterial highway when she knew, or in the exercise of reasonable care should have known that the car driven by the defendant Harry Paul Berner was so close that danger of a collision was imminent; in failing to keep a lookout for other traffic on the highway, particularly the car of the defendant Harry Paul Berner; in driving her car directly into the path of the automobile of the defendant Berner; in failing to slow down or stop when she was on the westerly portion of the highway when by the exercise of ordinary care and caution she could and should have so slowed and stopped and thereby avoided the accident; in driving in such a reckless manner as to endanger and unnecessarily inconvenience other users of the highway, particularly the defendant Harry Paul Berner, Jr.

[15 Wn.2d 646] Trial was had to the court sitting with a jury upon the issues presented. The verdict was for defendants. The court denied plaintiffs' motion for a new trial and entered a judgment upon the verdict. Plaintiffs present this appeal.

The assignments of error are (a) in submitting the issue of contributory negligence to the jury; (b) in giving four instructions and a refusal to give four requested instructions; and (c) in refusing to grant the motion for a new trial.

For convenience, we will refer to Hazel Brewer as appellant and Harry Paul Berner, Jr., as respondent.

The evidence which the members of the jury were justified in believing is summarized as follows: The accident occurred at the intersection of the Seattle-Everett highway and Gooseneck Way. The Seattle-Everett highway is a paved, arterial thoroughfare extending north and south. The paved portion is 40 feet wide, being divided into four lanes by yellow lines and there is a dirt shoulder on each side. Gooseneck Way crosses the arterial highway in a northeasterly and southwesterly direction. At the point of collision the highway is nearly level. At the time of the accident the pavement was dry and the day bright and clear. Respondent was travelling north on the arterial highway, appellant was going in a northerly direction upon Gooseneck Way. As he approached the intersection respondent was travelling on the right side of the highway at a speed of 50 to 55 miles per hour. He saw appellant when she was in the middle of the highway at a time when he was about 150 feet south. At that time she was proceeding slowly and he would have had time to pass in front of her had she maintained her rate of speed, but that she increased her speed [15 Wn.2d 647] and that his car collided with her automobile, although he...