Craig v. McAtee

• Decision Date: 16 January 1931
• Docket Number: 22655.
• Citation: 160 Wash. 337,295 P. 146
• Parties: CRAIG et ux. v. McATEE et al.
• Court: Washington Supreme Court

295 P. 146

160 Wash. 337

CRAIG et ux. v. McATEE et al.

No. 22655.

Supreme Court of Washington

January 16, 1931

Department 2.

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Action by John Craig and wife against Anne McAtee and another. Judgment for plaintiffs, and defendants appeal.

Reversed with instructions.

FULLERTON J., dissenting.

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

Revelle, Simon & Coles, of Seattle, for respondents.

BEALS J.

Defendant Anne McAtee was the owner of a Dodge automobile which she maintained for the use of herself and family; defendant Mary McAtee is a daughter of Mrs. Anne McAtee, and was, July 31, 1929, driving the Dodge north on Fourth Avenue South, Seattle, approximately four blocks north of the intersection of Fourth Avenue South with Spokane street. Plaintiffs John and Mary Craig were riding in the car as guests of Mrs. McAtee and her daughter. Fourth Avenue South is a paved thoroughfare carrying a heavy traffic, and the car was being driven close to the right-hand side of the pavement. The automobile was proceeding at not less than twenty-five miles per hour, and collided with a telephone pole standing near the east margin of the pavement. The collision resulted in injuries to each of the plaintiffs, who brought this action to recover damages on account thereof. The action was tried to the court sitting without a jury, and resulted in a judgment in plaintiffs' favor, from which defendants appeal.

The circumstances under which the accident occurred are set forth in finding No. IV, to which appellants did not except, which finding reads as follows:

'That on or about the 31st day of July, 1929, at or about the hour of 8:00 P. M., the plaintiffs herein were riding in the said automobile belonging to the defendant Anne McAtee, and driven by the defendant Mary McAtee, in pursuance of its ordinary use for family purposes, and upon the invitation and request of the defendants and each of them; that while the plaintiffs were riding in the said automobile with the defendants and each of them, and in a northerly direction along the said Fourth Avenue South approximately four blocks north of Spokane Street, all in the city of Seattle, King County, state of Washington, the defendant Mary McAtee drove the said automobile at the extreme right hand edge of the highway on account of traffic on Fourth Avenue South at a speed of not less than twenty-five miles per hour; that while so driving, the said Mary McAtee took her right hand off the wheel and felt in her lap for her hand bag; that she was a little startled that it was not there; not finding the hand bag in her lap the said Mary McAtee thereupon took her eyes off the road to look for said hand bag and found that it had slipped off from her lap and was on her right hand side and that she put her hand on the bag and the crash occurred immediately thereafter; that the time she had her eyes off the road was two or three times longer than it would have taken her to look down at an object and look back on the road; that while thus driving with her left hand and with her eyes off from the highway and the direction in which she was going, and while looking for her hand bag, the said defendant Mary McAtee drove said automobile at the rate of speed above mentioned into one of the said telephone poles on the east side of the said Fourth Avenue South.'

Other findings of fact and conclusions of law, to which appellants preserved exceptions, recite the injuries to respondents, and that appellant Mary McAtee in driving her car was guilty of gross negligence, thereby rendering appellants liable to respondents.

It is admitted that respondents were appellants' guests, and it follows that respondents could not recover unless the driver of the automobile was guilty of gross negligence. Heiman v. Kloizner, 139 Wash. 655, 247 P. 1034, 1036; Saxe v. Terry, 140 Wash. 503, 250 P. 27; Blood v. Austin, 149 Wash. 41, 270 P. 103; and other decisions of this court. Appellants contend that it does not appear from the record that Miss McAtee was guilty of gross negligence, and that therefore the judgment appealed from must be reversed. This action having been tried to the court sitting without a jury, we may pass upon the evidence and determine whether or not the evidence establishes as a matter of fact that the driver of the car was grossly negligent. Gough v. Smalley (Wash.) 294 P. 1007. It is evident that Miss McAtee, when she took her right hand off the steering wheel, unconsciously with her left hand swung her car a trifle to her right, thereby driving it off the pavement and into the telephone pole. Had Miss McAtee not glanced down to her side in search of her hand bag, she would undoubtedly have observed the change in the course of the automobile and corrected the same in time to avoid the accident. The finding of the trial court above quoted indicates that Miss McAtee's attention was distracted from the road for only an instant. This lack of attention is, in our opinion, the crucial point in the case, as it cannot be held...