Burge v. Anderson

• Decision Date: 21 September 1931
• Docket Number: 23170.
• Citation: 164 Wash. 509,3 P.2d 131
• Parties: BURGE v. ANDERSON et ux.
• Court: Washington Supreme Court

3 P.2d 131

164 Wash. 509

BURGE v. ANDERSON et ux.

No. 23170.

Supreme Court of Washington

September 21, 1931

Department 1.

Appeal from Superior Court, King County; Chester A. Batchelor Judge.

Action by Robert Burge against B. R. Anderson and Mildred Anderson his wife. From a judgment for plaintiff, defendants appeal.

Reversed and new trial ordered.

Stephen V. Carey and Henry T. Ivers, both of Seattle, for appellants.

Ray M Wardall, John J. Kennett, and R. E. Bigham, all of Seattle, for respondent.

MITCHELL, J.

This is an action arising out of a collision between the automobiles of the plaintiff, Robert Burge, and the defendants B. R Anderson and Mildred Anderson, his wife. The defendants have appealed from a judgment on a verdict in favor of the plaintiff.

The collision which occurred in Seattle happened at the intersection of East Northlake avenue, which runs east and west, and Latona avenue, which runs north and south. At the place of the collision, and for several hundred feet westerly, East Northlake avenue is paved. Latona avenue, south of East Northlake avenue is not paved. Just prior to the collision, respondent had parked his automobile on the east side of Latona avenue, just south of East Northlake avenue, the car facing northeast with its front wheels either upon, or very near, the south curb line of East Northlake avenue, according to conflicting testimony. Appellants' car, driven by the appellant Mrs. Anderson, was proceeding easterly on East Northlake avenue, within two or three feet of the south curb line, and according to conflicting testimony, ran into respondent's car either as it was standing still or after it moved into East Northlake avenue, and then glanced or ran obliquely across East Northlake avenue coming to rest on the north side of the pavement.

Appellants complain first of the court's instructions referring to certain provisions of the motor vehicle act of the state as to speed: (1) Fifteen miles an hour in traversing an intersection of highways when the driver's view is obstructed, and (2) fifteen miles an hour in traversing or going around curves or corners of a highway when the driver's view is obstructed a distance of two hundred feet along the highway in the direction in which he is proceeding. As to the first, appellants admit that the instruction was not erroneous if Latona avenue extends south of East Northlake avenue, but they contend that although platted as such years ago that portion of it is no longer other than private property because of nonuser of it by the city. But the facts, in our opinion, are against that contention. It is a part of the street by the recorded plat, which has never been vacated, and for years down to the present time the city has maintained a sewer on it; has erected and maintained a bulkhead on it to protect travelers from the waters of Lake Union near by to which this portion of the platted street leads; and while no pavement or sidewalk has been built on it, a roadway has been used over it for a great many years by trucks and other vehicles, frequently forty or fifty a day, going to and from coal and gravel bunkers on the lake. Mrs. Anderson admitted that she knew of the roadway. Under all the circumstances we think this portion of the street was a highway within the purview of the statute defining obstructed highways. Laws 1927, p. 770, § 3, subd. b, par. 2.

As to the second--speed in traversing or going around curves--the evidence is not as clear and satisfactory as it might be concerning the location of a perceptible curve in East Northlake avenue with respect to its proximity to the place of the accident, but we are of the opinion there was enough evidence in that respect to say that the submission of this question to the jury did not constitute reversible error.

Next it is contended that reversible error was committed in instructing the jury that an ordinance of the city provided: 'No person shall drive a motor vehicle without a brake or brakes sufficient to bring and capable of bringing such vehicle together with any trailer that may be attached thereto, to a full and complete stop within * * * sixty (60) feet when the same is traveling at a rate of twenty-five miles per hour. * * *'

The court had already told the jury of an allegation in the complaint, denied in the answer, that defendants' car was operated with insufficient brakes and, in effect, that the violation of any state law or ordinance of the city was negligence per se, and the argument is that the instruction as to driving without sufficient brakes was uncalled for because of the lack of any evidence upon the subject and was therefore prejudicial. Respondent objects to the...