Comstock v. Smith

• Decision Date: 15 August 1935
• Docket Number: 25351.
• Citation: 48 P.2d 255,183 Wash. 94
• Court: Washington Supreme Court
• Parties: COMSTOCK v. SMITH et ux.

48 P.2d 255

183 Wash. 94

COMSTOCK v. SMITH et ux.

No. 25351.

Supreme Court of Washington

August 15, 1935

Department 1.

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

Action by H. C. Comstock against L. B. Smith and Clara Smith husband and wife. From a judgment in favor of plaintiff defendants appeal.

Affirmed.

Ralph S. Pierce, of Seattle, H. C. Atherton, of Yakima, and E. E. Wager, of Ellensburg, for appellants.

E. K Brown, of Ellensburg, for respondent.

GERAGHTY Justice.

This action was brought by the plaintiff to recover damages for personal injuries sustained in a collision between an automobile driven by him and one driven by James Smith, a boy 16 years of age, son of defendants; the car driven by the son being the family car of the parents.

The accident occurred about 11 o'clock p. m., November 10 1933, at the intersection of Water and Sixth streets in the city of Ellensburg. Water street runs north and south and Sixth east and west. Sixth street is paved from the intersection east, and Water street is paved south from the north line of Sixth street. Both streets are approximately 44 feet in width between curbs. Main is the next street east of Water street, and is an arterial way with stop signs on either side at its intersection with Sixth street.

At the time of the accident, the plaintiff was driving north on the right-hand side of Water street at the rate, as he testified, of from 10 to 12 miles an hour. As he drove across the intersection and when the front end of his car was within 10 feet of the north curb line of Sixth street, his car was struck on the righthand side by the Smith car driven westerly on Sixth street. The force of the impact drove the plaintiff's car 35 feet, in an arc, to the northwest corner of the intersection, the car facing southwesterly when it came to rest. The Smith car came to rest past the center of the intersection.

The intersection was unobstructed in all directions. Earlier in the night it had been quite foggy, but the fog had lifted somewhat by the time of the accident. In reporting to the sheriff's office, young Smith gave the foggy condition as the cause of the accident. The plaintiff testified that Before entering the intersection he looked to the east for a distance of 150 feet and saw no car approaching; that he looked again as he approached the center of the intersection and saw no on-coming cars. Smith testified that he did not see plaintiff's car until immediately Before the impact. He had been playing an instrument at a dance held in a hall east of Main street, and, when the collision occurred, was on the way to his home to procure a repair part for the instrument, intending to return to the dance. He admitted he was in somewhat of a hurry to get back to the dance. He testified that, in driving west, he stopped at Main street, proceeded across in low gear, changed to second after crossing the street, and to high when he reached the alley in the middle of the block about 150 feet east of Water street, and that he had attained a speed of from 20 to 23 miles an hour at the time of the collision. We have thus the unusual condition where the driver of each car testified that he looked but did not see the other car. Other than his own, there was no testimony as to the speed of the plaintiff.

The witness Westenhiser, employed in a gas station at the northwest corner of Main and Sixth streets, testified that Smith drove past his station just as he was locking the doors for the night; that Smith hailed him as he passed, and that, after he had taken three or four steps, he heard the crash at the Water street intersection about 257 feet distant. He testified that Smith put his car into high gear in front of the gas station, gained speed rapidly, which he estimated at 33 miles an hour by the time the car reached the intersection. The force of Westenhiser's testimony was somewhat weakened by the fact that shortly after the accident he had made a signed statement, procured by an investigator for the defendants or their surety, in which he estimated the speed at 20 miles, and stated that Smith shifted into second gear in front of the station. He explained the discrepancy between his testimony and the earlier statement by saying that, after giving further consideration to the matter and making a trial with a car, he came to the conclusion that Smith was going at the higher rate of speed.

Three experienced garagemen were called by the plaintiff as expert witnesses and were allowed by the court to testify as to the speed of the Smith car, deducing their conclusions from the condition of the plaintiff's car after the accident. In their opinion, the Smith car, at the time of the impact, was driven at a minimum speed of 30 miles an hour--it might have been really 40--they could only approximate.

The case was tried to the court without a jury. The court made findings of fact and conclusions of law in favor of the...