Cartwright v. Boyce

Decision Date09 March 1932
Docket Number23515.
Citation8 P.2d 968,167 Wash. 175
PartiesCARTWRIGHT v. BOYCE et al.
CourtWashington Supreme Court

Department 2.

Appeal from Superior Court, King County; Arthur McGuire, Judge.

Action by Pauline Cartwright, by her guardian ad litem, C. E Cartwright, against J. A. Boyce and others. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

Colvin & Rhoodes, of Seattle, for appellant.

Poe Falknor, Falknor & Emory, Ralph S. Pierce, and Kenneth G Smiles, all of Seattle, for respondents.

MILLARD J.

By her guardian ad litem the plaintiff brought this action to recover for personal injuries resulting from the collision of defendants' automobiles, in one of which the plaintiff was riding as a guest. This appeal is from the judgment of nonsuit entered at the close of plaintiff's case.

Unless there is evidence or reasonable inference therefrom which would have sustained a verdict in favor of the appellant, the judgment should be affirmed. Jordan v Spokane, Portland & Seattle R. Co., 109 Wash. 476, 186 P. 875.

This is not a case of a collision resulting from the operation of an automobile on the wrong side of the road. The facts, which are as follows, clearly disclose that the Soderquists were operating their automobile on their own right-hand side of the road; that the Boyce automobile, while attempting to pass to the left (with a clearance of twelve to fourteen feet in width) of the Soderquist automobile, skidded and collided with the Soderquist car.

The accident occurred about 1:30 p. m. September 1, 1930, on a straightaway four blocks long of a well-improved gravel highway (Lake Sammamish road) twenty-four to twenty-eight feet wide. Appellant was a guest in the car of respondents Boyce. No cars, other than the respondents' two automobiles (which were traveling at the rate of twenty-five to thirty miles an hour), were within the range of vision of the parties to the accident. The day was clear, and there was nothing to obstruct the vision of the operators of the automobiles. Both automobiles were traveling in a northerly direction. The driver of the Boyce automobile, which was to the rear of the Soderquist car, traveled a distance of four miles on this road prior to overtaking the other car. The driver testified she could see the Soderquist automobile for four blocks Before she overtook it. Respondents Soderquist were on their own right-hand side of the highway, the left-hand side of their automobile being 'about the center of the road,' leaving a space to the left of the center of the highway of twelve to fourteen feet. On the highway at that time, appellant testified, was loose gravel on which the Boyce car traveled for four miles Before overtaking the Soderquist car.

How close the Boyce automobile was to the Soderquist automobile when the horn was blown, apprising the latter that the former desired to pass, is not disclosed. The driver testified that when she was to the rear of the Soderquist car a distance of probably the width of the trial court room she gave two or three blasts of the horn to warn the car ahead that she desired to pass, but that 'he seemed to stay just exactly where he was.' Deeming the space (twelve to fourteen feet) to the left of the Soderquist car of sufficient width to permit her to pass in safety she 'continued to go ahead. * * * The road was wide enough for me to get by, so I started to pass him.' As the Boyce automobile started to pass to the left of the other automobile, the former skidded in the loose gravel, the right front fender of the Boyce automobile hitting the left rear fender of the Soderquist automobile. The Boyce car landed on the left-hand side of the road against the bank and turned over. The driver of the Boyce car, called as a witness on behalf of the appellant, testified:

'Q. How much distance did you have from the left-hand side of Soderquist's car to the left-hand edge of the road to get through there? A. I had sufficient room to pass if the road had been a solid road.
'Q. In other words, you had plenty of room to safely pass if it had not been for this loose gravel? A. Yes sir.
'Q. Now you testified this morning, Miss Boyce, that as you came up there and started to pass your right front fender hit his left rear fender? A. After I skidded.
'Q. I didn't quite understand that this morning. Is that your testimony now? A. Yes, when I started to pass him when I got out to the left side of the road I skidded and my front right fender hit his left rear fender.
'Q. Was that after you started to skid? A. Yes, sir.
'Q. What made you skid; do you know? A. The loose gravel.
'Q. Well, you did not turn your car, though, did you? A. I turned it slightly as anyone else would to pass a car.
'Q. And then when you got up to where his car was you suddenly started to skid? A. Yes, that must have been it.
'Q. And the right front fender of your car skidden over to the left rear fender of his? A. Yes.
'Q. What did that do to your car? A. It swerved it out and it went into the bank.
'Q. You went over on the left-hand side of the road again, didn't you? A. Yes.
'Q. And then you skidded back and hit his car the second time, didn't you? A. I don't remember.
'Q. You are sure of that? A. No. I am not. * * *
'Q. Where were you on the left-hand side of the picture, that is at the time the accident occurred, toward the bank? A. Yes, sir.
'Q. And the other car was on the side of the road next to the fence or bulkhead? A. Uh huh.
'Q. After you had sounded your horn was there any change in the position with reference to the center of the highway of the Soderquist car? A. Well, I can't remember distinctly whether he moved over slightly or not at all. I know he did not move over a great deal if he did at all.
'Q. As I understood you to say, however, in your judgment there was still room enough to get by? A. Oh, yes, in my estimation there was plenty of room to get by. * * *
'Q. As I understand, these marks that you have placed with ink here on Exhibit 'A' indicate as near as you can recall the position of the right and left wheels of the Soderquist car? A. Yes.
'Q. Now as near as you can recall, while the mark on this picture indicates you might get a different view of it, it indicates it is just about the center of the road, doesn't it? A. I think it is slightly to the right of the center.'

Another of appellant's witnesses testified as follows:

'Q. Isn't it a fact that Mr. Soderquist's car was over here on these tracks? A. Mr. Soderquist's car was nearer the middle of the road than it was the right side.

'Q. Let me see if I understand you. You say that Mr. Soderquist's car was nearer the middle of the road than it was the right-hand side of the road? A. Yes.

'Q. How many feet to the right of the center of the road was the left-hand side of his car? A. I don't know.

'Q. Well, give the jury your estimate of that? A. What is that question again?

'Q. How many feet from the center of the road--you see the center is over here--was the left-hand side of his car? A. I could not say.

'Q. Three or four feet? A. Possibly. I don't know though.

'Q. But in any event all of his car was over on its own side of the road? A. I am not sure.

'Q. Do you think those marks (the marks placed on Plaintiff's Exhibit 'A' by Virginia Boyce) approximately represent where the Soderquist car was when you started? A. Yes.

'Q. You had plenty of room to get by, did'nt you? A. Yes.

'Q. In other words, if there had not been this skidding on this loose gravel there would not have been any trouble at all, would there? A. No.

'Q. And there was no traffic coming the other way? A. No traffic.

'Q. You ran into the left rear fender of the Soderquist car? A. Yes.

'Q. Was that Before or after you skidded? A. We skidded and hit first and then we skidded some more.

'Q. You hit him again didn't you? A. Not that I remember.

'Q. Are you sure about that? A. I don't remember hitting him twice; I only remember hitting him once.

'Q. Then you skidded around and your car was headed in the opposite direction and you went over there in the ditch on the left-hand side; is that right? A. Yes.

'Q. Did you come in contact with his car first or skid first? A. We skidded first.'

The automobile of respondents was operated on a well-improved gravel road at a normal rate of speed. There was sufficient space--twelve to fourteen feet--to the left of the Soderquist automobile to permit the Boyce car to pass in safety the Soderquist car. There was no traffic approaching. Miss Boyce gave a signal of her intention to pass the other car. Her automobile struck loose gravel and was thereby caused to skid. While skidding the automobile collided with the automobile it attempted to pass. There is no evidence, other than that of skidding, of negligence on the part of Miss Boyce. There is no evidence of excessive speed by the Boyce car. Our examination of the record fails to disclose evidence of defective equipment or that there was lack of care on the part of the driver of the Boyce automobile. Miss Boyce was not violating any law of the road when she attempted to pass the car in front. While so proceeding, her car skidden and collided with the other car. Unless there is evidence of negligent acts in addition to the evidence of mere skidding, and we find none, there is no question for the jury.

'The mere skidding of an automobile is not an occurrance of such uncommon or unusual character that alone, and unexplained, it can be said to furnish evidence of negligence in the operation of a car. [Citing cases.] Some contention is made that the contrary view has been expressed in Norris v Hadfield, 124 Wash. 198, 213 P. 934, 216 P. 846; but a careful examination of this case will...

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