Comfort v. Penner

• Decision Date: 04 January 1932
• Docket Number: 23348.
• Parties: COMFORT et ux. v. PENNER et ux.
• Court: Washington Supreme Court

6 P.2d 604

166 Wash. 177

COMFORT et ux. v. PENNER et ux.

No. 23348.

Supreme Court of Washington

January 4, 1932

Department 2.

Appeal from Superior Court, King County; Edwin Gruber, Judge.

Action by Carlton C. Comfort and wife against E. E. Penner and wife. From an adverse judgment, plaintiffs appeal.

Affirmed.

Carkeek, McDonald & Harris and Charles L. Harris all of Seattle, for appellants.

Shank Belt, Fairbrook & Rode, of Seattle, for respondents.

HOLCOMB J.

Appellants as a marital community, sued respondents, as a marital community, to recover $7,565 damages for personal injuries.

Appellants alleged damages sustained by personal injuries to the wife, a guest rider, by reason of an automobile accident which occurred on April 11, 1930, shortly after midnight at the intersection of California avenue and Admiral way in Seattle. Appellants alleged violations on the part of respondent husband of both state and city traffic regulations particularly alleging violations of the City Traffic Ordinance No. 53223, section 16 of which makes it unlawful to drive or operate a motor vehicle without having suitable bell, horn, or other signalling device which shall be used as a warning signal whenever there is danger of a collision or accident; section 91 making it unlawful for any person to drive a vehicle in a reckless manner over and along the public streets of the city in such manner as to endanger or inconvenience unnecessarily other users of its streets; section 92 prohibiting driving or operating a vehicle within the corporate limits at a rate of speed faster than 25 miles per hour, or to drive or operate such vehicle over or across any street intersection within the corporate limits at a rate of speed faster than 15 miles per hour, or in any case at a rate of speed that will endanger the property of another or the life or limb of any person, except on arterial highways when properly signed according to the state vehicle code; and section 110 requiring drivers when approaching street intersections to look out for and give right of way to vehicles on their right, simultaneously approaching a given point within the intersection, and whether such vehicle first enters and reaches the intersection or not; provided, that this paragraph shall not apply to drivers on arterial highways.

It is alleged that neither of the highways in question was at the time an arterial highway of the city or state.

Respondents by answer denied the allegations of negligence, and as an affirmative defense alleged that whatever injuries or damages were caused appellant wife were caused solely and entirely by the negligence of one Fraker, the driver of the car in which she was injured. This affirmative answer was denied by reply.

We shall henceforth mention each of the parties in the singular number.

After having heard the evidence of appellant and three other occupants of the car in which she was riding as a guest, including that of Fraker, the driver and owner, and the testimony of respondent, the jury found in favor of respondent upon which the court entered its judgment of dismissal. The jury having accepted the evidence of respondent and rejected that of appellant and her witnesses, we are bound to accept that evidence which is most favorable to respondent as governing this case.

According to the testimony of respondent, he left the place where he has worked as a machinist for more than ten years, Todd Dry Docks, in Seattle, to go to his home in West Seattle at a few minutes after midnight. Todd Dry Docks is about three miles from the intersection where this collision occurred. The collision occurred, according to respondent, at about 12:25 to 12:30 a. m. Respondent had been accustomed to traveling the same route on his homeward journey, shortly after midnight, five times a week, for about ten years. Admiral way is, with the exception of Avalon way, the most heavily traveled street or highway in West Seattle, which is a populous district of Seattle. California avenue, while a main thoroughfare, is not as heavily traveled as Admiral way. There is, however, a double track street car line on California avenue. Admiral way runs east and west, and California avenue intersects it at right angles. Both streets are 48 feet in width between curbs and 80 feet wide between property lines. Both streets are practically level at the intersection and the intersection is paved. Admiral way, both east and west of the intersection, has two strips of pavement each 15 1/2 feet wide separated by a dirt strip 17 feet wide. Respondent was traveling west on Admiral way and Fraker south on California avenue. There is a stop sign at the northwest corner of this intersection which was erected and has been maintained since May, 1928, requiring drivers of vehicles on that side of Admiral way to stop Before entering or crossing the intersection. When respondent approached the intersection from the east, he saw the Fraker car approaching it from the north at the rate of 20 or 25 miles an hour, and, when between 75 and 100 feet from the edge of the intersection, Fraker slowed his car down, until, in the language of his wife, a witness, 'he came so close to a stop that he could have stopped if it had been necessary.' As respondent drew near the intersection, he slowed down to 15 miles per hour. He then looked to his right and saw the Fraker car approaching the intersection and slowing down so that it could be stopped if necessary. He then directed his attention to the left, or southerly, on California avenue, to ascertain if any cars were coming from that direction, and then returned his glance to the north, up California avenue, when for the first time be saw Fraker was attempting to cross ahead of him, and he immediately put on his brakes, which were in good order, but it was too late to avoid the collision. Fraker testified that he saw the car of respondent east of the intersection at such a distance that he thought he had time to cross the intersection, but that respondent was going too fast. Respondent positively stated that he did not exceed 15 miles per hour, and would not admit that he was going even 16 miles per hour across the intersection.

Appellant insists that respondent was negligent in seven particulars: (1) Failure to sound his horn; (2) exceeding 15 miles per hour over and across the intersection; (3) not keeping proper lookout ahead; (4) driving in a careless and imprudent manner; (5) failure to avoid the accident; (6) failure to keep his car under control; (7) failure to yield to the Fraker car the right of way to which the Fraker car, being on respondent's right, was entitled.

The failure to sound his horn by respondent could not be urged as an act of negligence in violation of the city traffic ordinance when the driver of the car in which appellant was riding as a guest saw respondent's car approaching the intersection Before it entered it. It would have availed nothing to sound the horn in so far as the guest was concerned, for she...