Briggs v. United Fruit & Produce, Inc.

• Decision Date: 02 December 1941
• Docket Number: 28476
• Citation: 11 Wn.2d 466,119 P.2d 687
• Court: Washington Supreme Court
• Parties: BRIGGS v. UNITED FRUIT & PRODUCE, Inc.

119 P.2d 687

11 Wn.2d 466

BRIGGS v. UNITED FRUIT & PRODUCE, Inc.

No. 28476

Supreme Court of Washington

December 2, 1941

Department 2.

Suit by Bickford Briggs against the United Fruit & Produce, Inc., to recover for injuries sustained when the defendant's truck and trailer struck the bicycle which the plaintiff was riding. Judgment for the plaintiff, and the defendant appeals.

Judgment affirmed.

Appeal from Superior Court, Yakima County; Dolph Barnett, Judge.

Skeel McKelvy, Henke, Evenson & Uhlmann, of Seattle, for appellant.

Cheney & Hutcheson, John Gavin, and Wendell W. Duncan, all of Yakima, for respondent.

BEALS Justice.

Plaintiff Bickford Briggs, sued the defendant for damages as the result of injuries which he received when struck by defendant's truck and trailer, while plaintiff was riding a bicycle along a street in the city of Yakima. At the time of the trial plaintiff, who is five feet in height and weighs one hundred thirteen pounds, was thirty-seven years of age. At about twelve-thirty o'clock on the morning of Monday, July 22, 1940, plaintiff, who had spent Sunday with friends in Yakima, was riding south along First street south, the main north and south highway toward the southerly part of the county. The accident occurred within the city limits, where the highway is forty-four feet in width, and perfectly straight. The center of the street is marked with a yellow line. On each side of the center line for ten feet the highway is paved with dark asphalt, and on each side of the asphalt is a twelve-foot strip of concrete, making a total paved surface forty-four feet in width. At and near the scene of the accident, the shoulders of the road are eighteen feet wide, scattered with gravel.

Plaintiff was riding an ordinary bicycle, which carried an electric headlight operated from dry cell batteries, the light casting a beam a distance forty feet or so in front of the bicycle, and at the end of the beam approximately twelve feet in width. A red glass reflector, such as bicycles usually carry, was attached to the rear fender of the bicycle, and attached to the back of plaintiff's hat was a larger red glass reflector, which was so placed that it was visible to traffic approaching from the rear.

A large International truck and trailer, fifty and one-half feet long and seven feet wide, weighing nine and one-half tons, was proceeding south along the highway, in charge of Fred Fahrenholz as driver, and Russell S. Loar as helper. The truck had a flat bed body with side racks, and carried no load. The driver testified that the truck was in first class condition, that its brakes were working well, and the lights functioning perfectly. The lights were tilted down. The driver testified that he could see from eighty to one hundred feet ahead of the truck, the lights illuminating a strip approximately fourteen feet wide. The driver testified that he was maintaining a constant lookout ahead, but both he and Loar testified that they did not see the plaintiff, and did not know that they had struck him until they heard a sound which indicated that the left side of the truck or trailer had struck some object. The driver then stopped the truck, pulling it over on the right-hand shoulder of the roadway, and upon investigation they discovered that the truck had struck plaintiff, throwing him to the pavement and inflicting upon him very serious injuries. It is admitted that the truck passed plaintiff on his right, and that the left side of the truck collided with the right side of plaintiff's bicycle.

Plaintiff suffered a concussion of the brain, a badly lacerated scalp, eight fractured ribs, and other serious injuries. He remained in the hospital for two and one-half months, and is permanently disabled. He stated that he was proceeding south on the highway, on a straight course, his bicycle being, as he estimated the distance, six feet from the westerly edge of the concrete or outer portion of the pavement. He was not proceeding closer to the edge of the pavement because some gravel had worked over the pavement from the shoulder of the road, rendering difficult the operation of his bicycle on that portion of the highway. He testified that he had no recollection whatever of the accident itself, or how or where he had collided with the truck. It is admitted that both the truck and the bicycle were proceeding on the westerly half of the highway.

There were two eyewitnesses to the accident, Joseph and Kenneth Potter, who were proceeding in their automobile in a northerly direction along the highway. These witnesses observed both plaintiff's bicycle and defendant's truck approaching, the collision having occurred at about the instant their automobile passed the truck. They stopped as soon as possible and returned to the scene of the accident. Joseph Potter testified that the truck was traveling on the easterly portion of the concrete strip of the westerly half of the highway, at approximately thirty-five miles per hour, while the bicycle was traveling on the asphalt a foot or two east of the line where the asphalt and the concrete joined. He testified that the bicycle's headlight was functioning, and that while at a considerable distance he saw the form of a man riding the bicycle. The truck proceeded to pass the bicycle on the latter's right, and when the bicycle was even with the rear of the truck, he saw the bicycle thrown violently to the pavement.

Kenneth Potter testified that he first saw the truck when about a block distant; that he saw the truck approach, overtake and pass plaintiff's bicycle, when he saw the bicycle thrown to the pavement. He also stated that the bicycle was traveling on the asphalt in a perfectly straight line less than a foot east of the dividing line between the asphalt and the concrete, while the truck was proceeding along the concrete lane rather closer to the asphalt than to the outer edge of the pavement. He agreed with his brother in stating that the truck was traveling at about thirty-five miles per hour.

Another witness who did not see the accident testified that he heard the application of the air brakes on the truck, and observed the truck at that time, estimating its then speed at approximately thirty miles per hour.

The witness Gerald J. Morrison, a member of the police force of the city of Yakima, testified that he arrived at the scene of the accident a short time after it occurred. He stated that plaintiff's bicycle was taken to the station, where it was ascertained that the light would still function; that he found plaintiff's hat at the scene of the accident, the red reflector being still attached thereto. He stated that the truck was parked at a point four hundred feet or so south of the scene of the collision, and that on the left side of the body of the truck was a stout three-quarter inch rope, eighteen feet long, the ends of the rope being attached to the two top corners of the truck body, the rope hanging in an arc, the lowest portion of which was three feet from the ground. The officer also testified that he discovered a glove caught in the rope. This glove was introduced in evidence at the trial, and was identified as being the left hand glove which plaintiff was wearing at the time of the accident.

By an ordinance of the city of Yakima, twenty-five miles an hour was fixed as the speed limit for vehicles.

Rem.Rev.Stat. § 6360-20, reads as follows: 'During hours of darkness every bicycle shall be equipped with one lamp on the front exhibiting a white light visible from a distance of at least five hundred (500) feet to the front and with a lamp on the rear exhibiting a red light visible from a distance of five hundred (500) feet to the rear; excepting that a red reflector meeting the requirements of this act may be used in lieu of a rear light.'

An ordinance of the city of Yakima relating to the operation of bicycles along the city streets provides that bicycles shall be operated as near the right-hand edge of the pavement as practicable.

The severity of plaintiff's injuries is not denied. Defendant denied all negligence on its part, and pleaded contributory negligence on the part of plaintiff. The issues having been made up, the action was tried to the jury, which returned a verdict in plaintiff's favor. The court having denied defendant's motion for judgment in its favor notwithstanding the verdict, entered judgment on the verdict against defendant, from which judgment defendant has appealed.

Error is assigned upon the overruling of appellant's challenge to the sufficiency of the evidence made at the close of respondent's case; on the overruling of appellant's motion for a directed verdict; and upon the overruling of appellant's motion for judgment in its favor notwithstanding the verdict, or in the alternative for a new trial. Error is also assigned upon the admission of certain testimony offered by respondent, and received over appellant's objection, concerning an experiment made with the object of ascertaining the distance at which the bicycle could be observed from the rear, under conditions supposed to be approximating those existing at the time of the accident. Appellant also complains of three of the court's instructions, to which exceptions were preserved.

Respondent has moved to dismiss the appeal, basing his motion upon delay in filing appellant's transcript of the record, abstract and brief. The motion is without merit, and is denied.

It is not disputed that respondent and appellant's truck and trailer were both proceeding south along the highway, that the truck attempted to pass respondent on the latter's right, and that respondent's bicycle and the truck made contact at some point on the left side of the truck, with the result that...