Connolly v. Derby, 23575.

• Decision Date: 21 March 1932
• Docket Number: 23575.
• Citation: 9 P.2d 93,167 Wash. 286
• Parties: CONNOLLY v. DERBY.
• Court: Washington Supreme Court

9 P.2d 93

167 Wash. 286

CONNOLLY v. DERBY.

No. 23575.

Supreme Court of Washington

March 21, 1932

Department 1.

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

Action by John A. Connolly and wife against Paul E. Derby. After a verdict for plaintiffs, defendant's motion for judgment notwithstanding the verdict was granted, and plaintiffs appeal.

Affirmed.

John F. Dore and Herbert B. Butler, both of Seattle, for appellants.

Reynolds Ballinger, Hutson & Boldt, of Seattle, for respondent.

MITCHELL J.

This action was brought by a guest and her husband against her host to recover for personal injuries, and is to be determined by the rule of gross negligence proximately resulting in the injuries. The verdict was for the plaintiffs. The court granted defendant's motion for judgment notwithstanding the verdict, from which the plaintiffs have appealed.

The assignments of error properly presented relate to the question whether there was sufficient evidence to take the case to the jury on the question of alleged gross negligence of the respondent which evidence and all reasonable inferences therefrom must be considered from the standpoint most favorable to the appellants if the judgment should be sustained.

The accident occurred in Seattle, Wash., at the intersection of Mary Avenue Northwest, and West Eighty-Fifth street at 1:30 o'clock in the morning, as Paul E. Derby, respondent driving a coupé, was taking Mrs. Connolly home from a dance. The coupé collided with a truck. The night was dark and misty. The windshield of the coupé, as Mrs. Connolly testified, 'was blurred, and he had a windshield swipe going in front of him all the time.' The parties were going east on West Eighty-Fifth street. Mary Avenue Northwest, thirty-two feet wide between the curbs, enters West Eighty-Fifth street from the south. At the time of the accident, there was no light at the intersection other than what is spoken of as a common gooseneck light of about one-third the candle power of the ordinary intersection arc light, attached to a pole near the southwest corner of the intersection. The corners of the intersection were unobstructed, and the coup coupe was going at the reasonable speed of twenty-five miles an hour.

No one who witnessed the accident testified other than the respondent and Mrs. Connolly; the driver of the truck, though stopping at the time of the collision, got away from the scene without giving his name. Respondent and Mrs. Connolly both were uncertain whether the truck ran in front of them from Mary Avenue Northwest, or was already proceeding in front of them; respondent being rather of the opinion it suddenly came into the intersection in front of them at that point. Neither of the parties saw any light of any kind on the truck. Both testified it was a large truck, but were unable to say whether it was a furniture van or other kind of large truck, nor were they sure of its color.

Mrs. Connolly, who testified that she first saw the truck just Before they entered the intersection, further testified as follows:

'Q. Where did the collision take place, roughly, close to what street? A. Close to Mary Street.

'Q. Mary street and 85th at the further side of the intersection? A. Yes, sir, in the further side of the intersection.

'Q. That would be on the eastern side? A. On the eastern side.

'Q. And you were coming from the west going east? A. Yes.'

Still further, and at the conclusion of her testimony, upon having her attention called to a deposition she had given in the case, she testified as follows:

'Q. Mrs. Connolly, I will ask you if you did not testify upon the giving of the deposition as follows: 'Q. And as you approached this intersection did you see the object with which you later came in contact? A. I had a look at the truck just as I saw it ahead of us. Q. How far away was Mr Derby's car from the truck when you saw the truck? A. I could not...