Cronin v. Shell Oil Co.

• Decision Date: 24 April 1941
• Docket Number: 27873.
• Parties: CRONIN v. SHELL OIL CO.
• Court: Washington Supreme Court

112 P.2d 824

8 Wn.2d 404

CRONIN v. SHELL OIL CO.

No. 27873.

Supreme Court of Washington, En Banc.

April 24, 1941

Action by Eugene V. Cronin against the Shell Oil Company for personal injuries and property damage as result of collision between plaintiff's automobile and truck owned by defendant and driven by one of its employees. From a judgment for plaintiff, the defendant appeals.

Reversed with instructions to dismiss the action.

MILLARD BLAKE, and MAIN, JJ., dissenting.

Appeal from Superior Court, Snohomish County Lloyd L. Black, judge.

Caldwell Lycette & Diamond, of Seattle, for appellant.

J. L. Rucker, of Everett, for respondent.

BEALS Justice.

At about nine o'clock in the forenoon, December 10, 1937, Robert Smith, an employee of defendant, Shell Oil Company, was driving a gasoline truck belonging to defendant, in an easterly direction on the road which crosses Ebey slough on a mile and a quarter trestle, a short distance east of Everett. The trestle is straight and level, paved with concrete to the width of twenty-four feet, having a rough surface affording good traction, and is not intersected by any other road. The one and a half ton truck was carrying six hundred gallons of gasoline and some lubricating oil, weighing, with its load, approximately nine tons. The body was painted a brilliant yellow the hood and fenders red.

Plaintiff, Eugene V. Cronin, left Everett for Monroe, at about a quarter Before nine, in his Dodge automobile. For some distance he followed a truck, which he passed near the curve leading to the west end of the trestle. He then saw the oil truck ahead of him on the trestle, at a distance of about thirteen hundred feet. It had rained earlier in the morning, but at the time referred to was not raining, although the pavement was damp. Visibility was excellent.

After entering the trestle road, plaintiff raised his speed to something over forty miles per hour, gradually overtaking the oil truck, which plaintiff estimated was traveling at about thirty-five miles per hour. As plaintiff approached the oil truck, he noticed another truck approaching from the east. When this latter truck, referred to as a 'pick-up' truck, which was proceeding very slowly, probably at about one mile per hour, was about even with the oil truck, plaintiff was from two hundred to two hundred fifty feet behind the latter vehicle. The westbound truck, driven by L. H. Warfield, was towing a gas pump, the driver of the truck, in order to watch his tow, standing with one foot on the running board and one near the accelerator, his body partly in and partly out of the truck. After passing the westbound truck, the oil truck slowed down, and according to the testimony of plaintiff, stopped. Meanwhile, another truck was approaching from the east, and for that reason plaintiff was unable to pass the oil truck. The situation resulted in a collision between plaintiff's automobile and the oil truck, plaintiff's car striking the rear of the truck with considerable force. The collision occurred about four hundred forty feet west of the east end of the trestle.

Plaintiff sued defendant for damages on account of personal injuries received by plaintiff in the collision, and for five hundred dollars damage to plaintiff's automobile. In his complaint, plaintiff alleged that defendant's driver negligently stopped his truck upon that portion of the highway reserved for eastbound traffic, at a point where it was impossible for plaintiff to pass the truck because of westbound traffic; that defendant's driver was negligent in stopping his truck in the absence of any emergency requiring such action; and that he failed to give any signal of his intention to stop the truck, and failed to maintain proper observation of other persons using the highway, including plaintiff.

Defendant in its answer denied all negligence on the part of its driver, and pleaded contributory negligence on the part of plaintiff.

Plaintiff by his reply denied all negligence on his part, and the action was tried to a jury, which returned a verdict in plaintiff's favor, in the sum of four thousand dollars. From a judgment entered upon this verdict, defendant has appealed.

Appellant assigns error upon the denial of its motion for a nonsuit and a directed verdict at the close of respondent's case; upon the denial of its motions for a directed verdict at the close of all the evidence; upon the refusal of the trial court to give certain instructions requested by appellant; and upon the giving of four instructions to which appellant excepted. Error is also assigned upon the denial of appellant's motion for judgment in his favor notwithstanding the verdict, or in the alternative for a new trial. We shall consider only the assignment of error based upon the denial of appellant's motion for judgment in its favor notwithstanding the verdict.

There is little dispute concerning the relevant facts. The verdict of the jury settled in favor of respondent the question of the negligence of appellant's driver. The only question upon the facts of the case to be here decided is whether or not, upon the record, it should be held as matter of law that respondent was guilty of contributory negligence. In considering that question, we must take that view of the evidence most favorable to the party against whom the motion is made, the question involving no element of judicial discretion. With the principles applicable to such a question in mind, we shall consider the evidence in the case.

Respondent had a complete and unobstructed view of the brilliantly painted truck, for a considerable distance, as both cars moved eastward along the trestle. Respondent gained steadily upon the oil truck, until within from two hundred to two hundred fifty feet thereof. It was at this time that the pick-up truck, towing the gas pump, approaching from the east, passed the oil truck. The pick-up truck was traveling very slowly on its own side of the road, Warfield, its driver, watching the gas pump to be sure that it did not break loose. Just Before passing the oil truck, Warfield waved a friendly greeting to Smith, with whom he was acquainted. This greeting attracted respondent's attention.

Respondent testified as follows concerning the matters which he said distracted his attention from the oil truck:

'Q. When you approached the scene of the collision, what did you see? A. Well, I was getting so I could see the pipe-line truck [the pick-up], and there was some object that I noticed that was behind it; it was sticking out over the side of a car there, and then I noticed this man waving.

'Q. You noticed him waving. Can you show the jury, or tell the jury, how that was being done? A. Well, as near as I can say, he was looking back and waving with this arm, and that's about the size of what I could relate on that.

'* * * A. Well, I naturally watched this here pipe-line man that was doing all the waving; I was wondering who he was motioning to, and I glanced back at the road, and here this Shell truck was apparently stopped in front of me.'

On cross-examination: 'When I looked back on the highway I was about twenty-five or thirty feet ahead of this pipe-line truck. I was watching him until I was sure that there was nothing that he was waving to me for, and then I watched back on my side of the road.'

Mr. Warfield testified that he had waved a greeting to Mr. Smith; that he had observed respondent's car approaching; and that respondent was watching the witness, and continued to observe the pick-up truck until Mr. Warfield passed respondent's car. The witness also testified that respondent's car was making forty or forty-five miles per hour.

The record contains no evidence indicating that any good reason existed for the concentration of respondent's attention upon the pick-up truck. It was on its own side of the road, proceeding very slowly. Undoubtedly it presented a rather unusual spectacle, but respondent's continued interest therein can be classified only as mere curiosity. Respondent testified, supra, that Warfield was 'looking back and waving.' If Warfield was looking back, manifestly he was not waving at respondent, or to attract his attention.

Appellant's oil truck commenced to slow down as it passed the pick-up truck. The testimony is in dispute upon the question of whether the truck had come to a complete stop at the moment of impact, or whether it was still proceeding at a speed less than fifteen miles per hour. Respondent was the only witness who testified positively that the truck had completely stopped prior to the collision, and his testimony in this connection is equivocal.

Robert Smith, the driver of appellant's truck, testified that he gave the appropriate arm signal of his intention to stop. His testimony stands uncontradicted. Appellant's truck was equipped with a rear red brake light. Whether this light functioned as the oil truck slowed down does not appear. Respondent testified that he did not see Smith's arm signal indicating his intention to stop, but in view of his testimony that he was watching the pick-up truck, his failure to see the signal may readily be understood.

Respondent testified that he ceased to watch the oil truck when about two hundred or two hundred fifty feet behind it, and that when he again looked at it, he was within seventy-five feet, and gaining on it very rapidly, as he had not reduced his speed below forty miles per hour. Concerning this matter, he testified:

On cross examination:

'Q. Then at that time under those circumstances, you looked at this truck [pick-up truck] over here, and you continued to look at that truck until you finally looked back on the highway here, and at that point you were about seventy-five feet...