Crowe v. O'Rourke

• Decision Date: 08 December 1927
• Docket Number: 20705.
• Citation: Crowe v. O'Rourke, 146 Wash. 74, 262 P. 136 (Wash. 1927)
• Court: Washington Supreme Court
• Parties: CROWE et ux. v. O'ROURKE et ux.

262 P. 136

146 Wash. 74

CROWE et ux. v. O'ROURKE et ux.

No. 20705.

Supreme Court of Washington

December 8, 1927

Department 2.

Appeal from Superior Court, Walla Walla County; Mills, Judge.

Action by Charles Crowe and wife against William O'Rourke and wife. From a judgment for plaintiffs, defendants appeal. Affirmed.

Sharpstein & Smith, of Walla Walla, for appellants.

R. M Sturdevant, of Dayton, and W. G. Coleman, of Walla Walla, for respondents.

HOLCOMB J.

On May 22, 1926, the automobiles of the parties hereto, while being driven in opposite directions, about 10 miles north of Dayton, collided. The roadway on which the collision occurred was a macadamized state highway, at that place about 24 feet wide, 18 feet of which was newly graveled, the balance graded and 'shouldered up' to the level of the macadam, but constructed merely of dirt, with a gutter or ditch on each side of the roadway about a foot and a half or two feet deep.

As grounds of negligence, respondents allege that appellant, the husband (who will henceforth be spoken of as if the only appellant), while traveling in an opposite direction to that traveled by respondents, had fallen behind an automobile stage driving in the same direction as appellant, and attempted to pass the stage in a cloud of dust in a careless and negligent manner, and without having a clear view of the highway ahead a distance of 200 yards; and that appellant, without exercising care and caution carelessly and negligently drove his automobile onto respondents' right side of the highway and onto the respondents' right of way, with great force and speed into the automobile in which the respondents were riding and which they were operating.

For answer, appellants denied that their own automobile was operated in a careless manner, admitted the injuries to respondents, and affirmatively alleged that respondents were guilty of contributory negligence in that, having no clear vision ahead when the great cloud of dust was blown across the road in front of them by the stage, they drove their car into the dust, when they had no vision as to what there was or might be ahead of them, at a high rate of speed on a line to the left of the center of the road, and that by reason of such unlawful and negligent driving their car collided with that of appellants without any fault on the part of appllant pellant. The affirmative answer was denied by reply.

Both parties alleged substantial damages to their cars, and respondents alleged damages for personal injuries to both of them, demanding the total sum of $26,110.

While there is considerable conflict in the evidence given at the trial, that introduced by respondents, upon which a verdict was rendered by the jury in respondents' favor for the sum of only $758.20, shows the following facts:

The Inland Empire highway north of Dayton is an arterial highway, had been repaired and finished, and was a standard highway. At that season of the year it was dusty, especially when the wind blew. In places where the surface was somewhat newly laid, passing vehicles would raise the dust and cause a cloud of it. Appellant was driving north toward Moscow, and the respondents were driving south toward Dayton. There was a stage traveling north just ahead of the car driven by appellant, and there was no car ahead of the stage, it thus having a clear road ahead, and was at the time of the collision traveling down grade. Respondents were driving and operating a new Dodge sedan, which had been driven but about 220 miles, and respondents had never driven it to exceed 25 miles an hour. On this trip, just prior to the collision, they were driving it not to exceed 20 miles per hour. The father and mother of respondents were driving just ahead of them in another Dodge sedan, and they also were traveling at the rate of 20 miles an hour. The evidence of respondents and their parents is that appellant was driving very close to the stage and at one time was seen attempting to pass the stage just before the cloud of dust blew across the road in front of respondents. Seeing the approach of the first car, that of parents of respondents, he dropped back behind the stage, and respondents' parents proceeded and passed both the stage and appellant at almost the same time. The stage raised considerable dust and the wind blew it across the road to the respondents' side of the road. After the car of the parents had passed, appellant again attempted to pass the stage at a time when a great cloud of dust was blowing across the road in front of respondents. Respondents' car was at all times driven very close to their right side of the road, and at the time of the collision, in order to give the stage plenty of room, was being driven about 1 1/2 or 2 feet from the ditch or gutter on their right side of the road. Its right wheels were traveling off the gravel.

Immediately after the accident, appellant stated to a witness, who testified thereto at the trial, that the cause of the accident was, 'Three of us trying to pass on the highway.' All the witnesses for respondents said that the car of appellant, at the time and place of the collision, was over on his left side of the highway on the right side as to respondents, where the cars locked together and came to rest.

It will thus be seen that the car of respondents was at all times on its own proper side of the highway; in fact, was farther to the right, being off the gravel, than it was required to be.

Respondents being where they had a right to be, and traveling at a very moderate rate of speed when they were struck on their own right of way, the burden is upon the one who struck them, if he would be excused of negligence, to explain how it happened. This, appellant and some of his witnesses attempted to do, but the jury disbelieved them and believed the testimony of respondents and their witnesses.

Under the situation presented, appellants contend, first, that the evidence fails to show any negligence on the part of the husband, the driver of their...