Bunnell v. Barr
| Decision Date | 16 June 1966 |
| Docket Number | No. 37806,37806 |
| Court | Washington Supreme Court |
| Parties | Robert H. BUNNELL and Betty Bunnell, his wife, and Robert H. Bunnell, as Guardian ad Litem for Trudy Bunnell and Karen Bunnell, Minors, Respondents, v. Irwin W. BARR, Alfred J. Barr and Jane Doe Barr, his wife, Appellants. |
Davies, Pearson, Anderson & Pearson, Wayne J. Davies, Seattle, for appellants.
Lycette, Diamond & Sylvester, Richard M. Foreman, Seattle, for respondents.
This action for personal injury and property damages arises from a head-on collision occurring at about 9:30 p.m., March 31, 1962, on Petrovitsky Road southeast of Renton, Washington. Plaintiffs' (respondents') automobile, a Nash Rambler station wagon was being driven by plaintiff Mrs. Betty Bunnell, who was accompanied by her two minor daughters, Trudy and Karen Bunnell. Defendants' (appellants') vehicle, a Chevrolet pick-up truck, was being driven by defendant Irwin W. Barr with the permission of his parents, defendants Mr. and Mrs. Alfred J. Barr. Irwin W. Barr was accompanied by two young girls.
The jury returned a verdict for defendants, rejecting the claims of all plaintiffs. The trial court granted plaintiffs' motion for new trial, from which order defendants appeal.
Petrovitsky Road, at the time and in the vicinity of the accident, was a narrow, two-lane, blacktop roadway, winding generally in an east-west direction through a heavily wooded area. At the scene of the accident, the road was straight for several hundred feet, with narrow shoulders abutted on the south side by a high, brushy bank and on the north side by trees and a drop off. Traffic approaching from the east or west entered the straight stretch of road from gradual left-hand curves. The posted speed limit was 45 miles an hour. At the time of the accident, it was dark and the roadway was dry. Plaintiffs' vehicle was eastbound and defendants' vehicle was westbound. When they emerged from their respective curves and met on the straight stretch of road a collision occurred. Each driver contends the other was on the wrong side of the road, and from this contradiction flows the issues raised on this appeal.
The plaintiff driver testified, in substance, that as she entered the straight stretch of roadway she was traveling approximately 30 miles an hour; that she observed the headlights of defendants' vehicle emerging from its curve about 300 to 350 feet away; that defendants' vehicle then appeared to be partly on her side of the road and approaching quite rapidly; that as defendants' vehicle continued to move further onto her side of the road she applied her brakes and pulled over to her right (the south side of the road) and onto the shoulder as far as the narrowness of the shoulder and the abutting high bank permitted; that as she came to a stop in this position the left front portion of defendants' vehicle collided violently with the left front portion of her vehicle; and that her vehicle did not noticeably move after impact. Her version of the event was supported by the testimony of the driver of a following car, the testimony of a highway patrolman as to the location of debris and wheel marks which he observed, photographs showing the location and damage to plaintiffs' vehicle, and to some extent by an extrajudicial admission of the driver of defendants' vehicle.
On the other hand, the defendant driver essentially testified that as he came out of the curve he was traveling about 35 to 45 miles an hour with the left wheels of his vehicle approximately a foot over the center line; that he observed the reflection of the headlights of plaintiffs' vehicle approaching and, as the headlights came into full view, he observed that one third to one half of plaintiffs' vehicle was on his side of the road; that he immediately returned to his proper lane of travel and slowed down; that as plaintiffs' vehicle continued toward him on his side of the road he realized a collision was imminent; that he forcibly applied his brakes and attempted at the last minute to avoid the accident by swerving to his left rather than into the trees and drop off on his right (the north side of the road); that the vehicles collided in about the center of the road with the right front of his vehicle striking the left front of plaintiffs' vehicle; and that, following impact, his vehicle swung completely around and ended up heading west on the north side of the road.
Defendant driver's depiction of the occurrence finds support in the testimony of one of his passengers, testimony concerning some dirt in and about the center of the roadway, and evidence relating to tire or skid marks from his vehicle commencing on his side of the road and leading into the area of impact. Photographs of damage to defendants' truck are inconclusive as to the point of initial contact with plaintiffs' vehicle.
The jury was appropriately instructed upon the rules of the road and the issues of negligence and contributory negligence as related to the respective drivers and plaintiff driver's passengers. It then returned a verdict for defendants, thus rejecting the claims of all plaintiffs. It is therefore apparent from the verdict that the jury accepted the defendant driver's version of the accident and found him free of negligence.
In the order granting a new trial, the trial court, pursuant to Rule of Pleading, Practice and Procedure 59.04W, RCW vol. O, set forth the following reasons for its action:
The defendant driver gave several different versions of how the accident happened, each version being inconsistent with the other, and in addition, the physical facts, mainly the position of the plaintiffs' vehicle on the side of the road, the evidence of some eighteen inches of tiremarks or wheel marks indicating the plaintiffs' car had been pushed back by the force of the collision; the evidence of the skidmarks on the highway from the defendant driver's automobile indicated that the accident had to have occurred on the plaintiffs' side of the road and not in the center of the road as the defendant claimed and testified; and in view of this and the other evidence as to the manner in which the collision occurred, the court being concerned mainly with the uncontroverted physical evidence, the court committed error in instructing the jury by its emergency instruction, the Court's Instruction No. 12, and this instruction...
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State v. Williams
...be disturbed on appeal absent an abuse of discretion. State v. Marks, 71 Wash.2d 295, 301-02, 427 P.2d 1008 (1967); Bunnell v. Barr, 68 Wash.2d 771, 775, 415 P.2d 640 (1966). It has been repeatedly pointed out, however, that such discretion does not give a trial court license to weigh the e......
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Hollins v. Zbaraschuk
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Otzenberger v. Park-Hwang, No. 30692-1-II (WA 5/10/2005)
...fair trial. CR 59(a)(1). But it may not use the rule as a means to substitute its judgment for that of the jury. See Bunnell v. Barr, 68 Wn.2d 771, 775, 415 P.2d 640 (1966); Thompson v. Grays Harbor Cmty. Hosp., 36 Wn. App. 300, 307, 675 P.2d 239 (1983). Moreover, an aggrieved party must re......
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Thompson v. Grays Harbor Community Hosp.
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