Brewer v. Berner
| Decision Date | 16 December 1942 |
| Docket Number | 28849. |
| Citation | 15 Wn.2d 644,131 P.2d 940 |
| Parties | BREWER et al. v. BERNER et al. |
| Court | Washington Supreme Court |
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.
Kennett & Benton, of Seattle, for appellants.
Shank Belt, Rode & Cook, of Seattle, for respondents.
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 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.
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 and that his car collided with her automobile, although he applied his brakes as soon as he realized appellant had increased her speed.
Appellant came to a stop about 4 or 5 feet from the edge of the pavement, looked to her right and saw respondent, as she says, about 900 feet to the south, and then proceeded across the arterial highway at about 4 miles per hour until she reached the center at which place she increased her speed to 10 miles per hour. The cars hit at an angle, the left front fender of respondent's car striking the right front fender of appellant's automobile, but respondent's car left skid marks on the pavement. The marks were in a straight line and extended to a point about 100 feet south of the point of contact. After the accident considerable dirt and gravel was found on the highway near the eastern point of its intersection with Gooseneck Way.
Appellant argues that the court should have granted a new trial for the reason that the verdict was contrary to the evidence. We are satisfied, however, that there was ample evidence to submit the case to the jury upon the questions of the negligence of respondent and the contributory negligence of appellant, and that the judgment must be affirmed unless error was committed by the court during the trial.
Appellant next contends that the court committed reversible error in giving several instructions. Among others, the trial court presented to the jury instructions upon contributory negligence, sudden emergency, and the duties of the respective drivers of cars in crossing and approaching an intersection.
We have examined these instructions and considered them in relation to the evidence given at the trial. The instructions were correctly worded and the court was entirely justified in giving them to the jury.
Another instruction, which related to unavoidable accident, demands further consideration. The court instructed the jury in instruction No. 17 as follows: 'If you believe from the evidence in this case that what happened was an unavoidable accident not due to the negligence of any party, then your verdict must be for the defendants.'
Appellant contends that this instruction was not supported by any evidence in the case and was therefore prejudicial.
We have defined an 'unavoidable accident' as follows: ...
To continue reading
Request your trial
-
Lucero v. Torres
...evidence shows or justifies an inference that an unavoidable accident has occurred, as that term has been defined. See Brewer v. Berner, 15 Wash.2d 644, 131 P.2d 940. Appellant also contended that the Brewer case stands for the proposition that an unavoidable accident has not occurred unles......
-
Hancock-Underwood v. Knight
...483 N.W.2d 796, 798-99 (S.D.1992); Texas, Reinhart v. Young, 906 S.W.2d 471, 472-73 (Tex. 1995); Washington, Brewer v. Berner, 15 Wash.2d 644, 131 P.2d 940, 943 (1942); and Wisconsin, Van Matre v. Milwaukee Elec. Ry. & Transp. Co., 268 Wis. 399, 67 N.W.2d 831, 833 (1955). 3. Those states ar......
-
Wong v. Swier
...1935, 183 Wash. 177, 179, 48 P.2d 212, 213. 32 Cantrill v. American Mail Line, supra Note 28, 257 P.2d at page 185; Brewer v. Berner, 1942, 15 Wash.2d 644, 131 P.2d 940; Barnes v. Labor Hall Association, Inc., 1957, 51 Wash.2d 421, 319 P. 2d 554, 33 89 C.J.S. Trial § 567(b); 53 Am.Jur., Tri......
-
Miller v. Alvey, 30785
...(1962), 59 Wash.2d 829, 830, 371 P.2d 43, 44; Calhoun v. Lasinski (1949), 255 Wis. 189, 191, 38 N.W.2d 353, 354; Brewer v. Berner (1942), 15 Wash.2d 644, 648, 131 P.2d 940, 942; Yanow v. Weyerhaeuser Steamship Company (1958), 9 Cir., 250 F.2d 74, 76; Harrison v. Garner (1963), Alaska, 379 P......