Brotherton v. Day & Night Fuel Co.

• Decision Date: 29 November 1937
• Docket Number: 26629.
• Citation: 192 Wash. 362,73 P.2d 788
• Court: Washington Supreme Court
• Parties: BROTHERTON et al. v. DAY & NIGHT FUEL CO. et al.

73 P.2d 788

192 Wash. 362

BROTHERTON et al. v. DAY & NIGHT FUEL CO. et al.

No. 26629.

Supreme Court of Washington, En Banc.

November 29, 1937

Appeal from Superior Court, King County; James T. Lawler, Judge.

Action by Clara B. Brotherton, guardian ad litem of Edwin Brotherton, a minor, and another against the Day & Night Fuel Company and others. Judgment for plaintiffs, and defendants appeal.

Reversed with directions.

Ralph S. Pierce, Edwin J. Cummins, and Gordon H. Sweany, all of Seattle, for appellants.

John J Sullivan and Hugh Miracle, both of Seattle, for respondents.

BEALS Justice.

Plaintiff Clara B. Brotherton, as guardian ad litem, sued to recover damages for personal injuries suffered by Edwin Brotherton, a minor, and William Walsh sued for damages to his automobile the injuries to both person and property having been occasioned by a collision between the car owned by plaintiff Walsh, which was then being driven by his brother Grattan Walsh, in which Edwin Brotherton (who will hereinafter be referred to as though he were the actual plaintiff) was a passenger, and a large truck, constructed for hauling sawdust, owned and operated by defendant Day & Night Fuel Company, a corporation, which, at the time of the accident, was being driven by defendant Russell D. Moye. The action was tried to the court sitting without a jury, and resulted in a judgment in favor of Edwin Brotherton in the sum of $1,000, and in favor of plaintiff Walsh in the sum of $95, from which judgment defendants have appealed.

Error is assigned upon the refusal of the trial court to sustain appellants' challenge to the sufficiency of the evidence; upon the making of several findings of fact; upon the refusal of the trial court to enter judgment in appellants' favor; in entering judgment for respondents; and in overruling appellants' motion for a new trial.

It appears from the record that, on the evening of February 21, 1936, Grattan Walsh borrowed the automobile owned by his brother, respondent William Walsh, and with respondent Bortherton, at about 9 o'clock in the evening, left the Walsh home in that portion of the city of Seattle known as West Seattle, and proceeded toward the main portion of the city, driving east along West Spokane street. Grattan Walsh was driving, Brotherton sitting beside him on the front seat. It was raining, and the visibility was not particularly good. In that vicinity, West Spokane street is a divided highway, each half being paved and wide enough for two lands of traffic, the south half of the street being devoted to traffic going east, and the north half to traffic moving west. At the same time, an orange-colored truck owned and operated by appellant corporation was also proceeding east on Spokane street, at the rate of about 5 miles per hour, up a 7 per cent. grade, near the intersection of Spokane street with Twenty-Third Avenue Southwest. The truck was heavily loaded, and was proceeding near its right-hand edge of the pavement. At this point, traffic on Spokane street may move up to 35 miles an hour, and respondents were proceeding at the rate of approximately 25 miles. The driver of the automobile did not see the truck ahead of him until his car had approached it quite nearly. He then endeavored to avoid the truck by turning to his left, but, notwithstanding his attempt, the right front door post of the car struck the left rear corner of the truck, damaging the automobile and inflicting injuries upon respondent Brotherton.

The trial court, after stating the formal facts and the collision, found '* * * that the said collision was caused by the negligence of all of the defendants, and that the defendants were negligent in that they [knew, or] should have known, in the exercise of reasonable care, that the truck owned by the defendant Day & Night Fuel Company was not displaying lighted red lights on the rear thereof as required by the laws of the state of Washington; that the defendant failed to use due care in determining whether or not the rear end of the said truck was equipped with lights [and reflectors] as required by the law of the state of Washington.' (The words in brackets were stricken by the trial judge, the elisions bearing his initials, as shown by the transcript.)

This finding states the only negligence of which the trial court found appellants were guilty.

Respondents suggest that appellant driver was negligent in proceeding up the hill at no greater speed than 5 miles an hour, and cite section 41 of the traffic code of the city of Seattle, introduced in evidence, which section reads as follows: 'Minimum Speed. It shall be unlawful for any person to drive unnecessarily at such a slow speed as to impede or block the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation, or because upon a grade, or when a vehicle is a truck or truck and trailer necessarily, or in compliance with law, proceeding at reduced speed.'

Respondents, while admitting that appellants' truck comes within the exception referred to in the paragraph quoted, argue that the fact that the truck was proceeding very slowly required the driver thereof to use extreme care to see that the lights on the rear of the truck were functioning. It is true that the driver of a loaded truck, which of necessity climbs a 7 per cent. grade slowly, should exercise great care that proper warning signals are in position on the rear of the vehicle to give notice of its presence to overtaking traffic, and that the signals which shine are functioning properly. This, however, is true as to all trucks and all vehicles using the highway. The fact that the truck was moving at approximately 5 miles per hour does not show any negligence on the part of appellants.

The evidence concerning the warning signals on the rear of the truck is somewhat in conflict. Grattan Walsh testified that it was raining quite hard, and the visibility was poor; that his headlights were in good condition (in which from his own evidence the witness was evidently in error), and on a clear night would have disclosed to his vision and object 60 feet ahead, but that on the night of the accident, because of the rain, he could not see nearly as far ahead as under normal circumstances, and that for the reason assigned, with the windshield swipe working, he could see ahead only about 30 feet; that his brakes were in good condition; that both his car and the truck were traveling 3 or 4 feet from the right-hand curb; that the witness was looking forward on the highway, say no red light, but suddenly saw the truck looming up in front of him, whereupon the witness swung hard to his left, but failed to clear the truck. He also stated that he did not see any red reflectors on the rear of the truck, and that, when he examined the truck after the accident, he saw no reflectors, nor did he observe any broken clearance light.

Respondent Brotherton testified that the headlights on the car in which he was riding appeared to be normal, and on a clear night would disclose objects up to 75 feet ahead; that on the night of the accident, because of the rain, the headlights would disclose objects about 30 feet ahead; also testifying that he had, since the accident, made tests as to the distance within which objects would be rendered visible by the headlights of the car, and that his testimony was in part based upon such tests. The witness testified that he did not see the truck at all Before the impact, although he was looking ahead; that the first thing he knew 'was when we hit the back of the truck.' In view of his testimony that he never saw the truck at all, the testimony of the witness that he was observing the road ahead is entitled to little weight.

John Bianchi, was worked with Grattan Walsh, testified that he came along in his car almost immediately after the accident; that he saw no clearance light on the lower left-hand corner of the truck; and that he did not remember seeing reflectors; that 'there was no tail light on the truck that I know of.'

George Church testified that he was with the witness Bianchi, saw the truck, and that there was no light at all on the back thereof. Later the witness testified that there were 'no lights visible,' which suggests that he referred to the shining of the red signal lamps, not to their mere presence on the truck. The witness could not tell the color of the truck, did not know whether or not it was loaded, and saw no pitchfork hanging on the rear, other testimony indicating that such an implement was so placed.

This comprises the evidence introduced by respondents as to appellants' negligence.

Appellant Moye testified that there were two red lights on the back of the truck, one taillight and one clearance light; that there were also on the rear of the truck two red reflectors, facing back, one on the frame by the taillight and one by the clearance light; that these reflectors were approximately 4 inches in diameter; that both the rear lights were on the same switch as the headlights, and that the headlights were shining at the time of the accident; that approximately twenty minutes Before the accident the witness had reloaded the truck, and at that time the clearance light was shining that the clearance light was broken in the accident and one of the reflectors cracked, but that the taillight continued to function after the accident. An officer of appellant corporation testified, as did Moye, concerning the lights and reflectors on the rear of the truck, further stating that he saw the particular truck in question at 4 o'clock on the afternoon of the accident, and that both the tail and clearance lights were then functioning; that the trucks were regularly inspected and the lights checked...