Curtis v. Perry

• Decision Date: 31 January 1933
• Docket Number: 24049.
• Citation: 171 Wash. 542,18 P.2d 840
• Parties: CURTIS v. PERRY.
• Court: Washington Supreme Court

18 P.2d 840

171 Wash. 542

CURTIS v. PERRY.

No. 24049.

Supreme Court of Washington

January 31, 1933

Department 2.

Appeal from Superior Court, Whatcom County; Edwin Gruber, Judge.

Action by Walter Curtis against Mary Agnes Perry. From a judgment for plaintiff, defendant appeals.

Affirmed.

Sather & Livesey and George Downer, all of Bellingham, for appellant.

Abrams Healy & McCush, of Bellingham, for respondent.

BEALS C.J.

Plaintiff seeks to recover damages on account of personal injuries sustained by him in a collision between a motorcycle driven by himself and a Dodge coupé owned and driven by defendant. A verdict was returned in favor of plaintiff, upon which judgment was entered. Defendant appeals.

The collision occurred in the right angle intersection of the Bellingham-Sumas highway with the Clearbrook highway. The former road is paved to a width of 16 feet, and the latter is graveled to a width of 10 or 12 feet. The Bellingham highway is practically straight for a mile to the south of the Clearbrook road, and is also straight for a considerable distance to the north.

Respondent lived near Abbotsford, British Columbia, a short distance north of Sumas. On the evening of July 2, 1930, he and George Andrews drove to Bellingham. On their return, at about 9 o'clock, as they, proceeding north, made the turn a mile south of the Clearbrook road, they observed ahead of them the automobile of appellant, in which were riding three persons besides herself, going in the same direction. They testified that appellant's car was 1/3 to 1/2 mile ahead of them and that it was traveling 25 to 30 miles per hour. Their speed was between 35 and 40 miles per hour. From testimony introduced in behalf of respondent, the jury may have believed that, at a point about 500 feet south of the Clearbrook road, respondent had come up to within 150 feet of appellant's car, and then began to sound his horn as a signal that he was going to pass, continuing the signal until the moment of collision. As respondent approached closer to appellant's car, she swung over to the right of the paved portion of the highway and respondent swung over to the left side of the highway to pass, and, Before the front of the motorcycle came abreast of the rear of the automobile, appellant, without holding our her arm or giving any signal of her intention to do so, turned abruptly to the left into the Clearbrook road. Respondent, seeing that he would be unable to pass on the left, changed his course in an attempt to pass on the right. This attempt failed and the motorcycle struck the rear of the automobile just to the left of center. At the moment of impact the automobile was about half turned into the Clearbrook road, with the left wheel, and possibly the right, off the pavement to the west. It was dusk and the light on the motorcycle shone on the back of appellant's car. Appellant did not look back Before making the turn into the Clearbrook road.

Evidence on behalf of appellant was to the effect that about 500 feet south of the Clearbrook intersection she observed, in the mirror of her car, the lights of an automobile a long distance behind her. She did not abserve the motorcycle, nor was she aware of its approach. About 400 feet south of the intersection she began to apply her brakes, which operated a 'stop light' signal, to slow down for the turn, and continued to apply them intermittently until she reached the intersection. A ditch paralleled the Clearbrook road on the south, over which was a bridge with side railings. Because of this bridge in the Bellingham-Sumas highway and the narrowness of the Clearbrook road, it was necessary to take the turn very slowly. There was no warning signal from the motorcycle indicating an intention to pass. The only sound of horn was a slight 'squawk' at the moment of impact. Appellant's evidence further tended to show that the motorcycle was traveling at a speed much in excess of 40 miles per hour.

Appellant relies upon eighteen assignments of error, which may be grouped under three heads: (1) Refusal to instruct the jury to return a verdict for defendant and overruling a motion for judgment notwithstanding the verdict; (2) misconduct of counsel in the cross-examination of appellant and witness Ebright; and (3) refusal to give certain instructions requested by appellant, and the giving of certain instructions.

Appellant's requested instruction for a directed verdict was properly refused, and, likewise, her motion for judgment notwithstanding the verdict. Under the evidence, as above narrated, her negligence and respondent's contributory negligence were for the jury. Burns v. Standring, 148 Wash. 291, 268 P. 866; Jacklin v. North Coast Transportation Co., 165 Wash. 236, 5 P.2d 325; Grubbs v. Grayson, 165 Wash. 548, 5 P.2d 1033.

Appellant called as a witness Floyd Ebright, the mechanic who repaired her car. He gave a detailed description of the damage sustained by the car as a result of the collision. On cross-examination, under the pretext of testing his credibility, he was asked who brought the car in for repair and who paid the bill. The following questions were asked appellant on cross-examination:

'Q. (Mr. Abrams) You filed no claim or interposed no claim in this suit for the damages to your automobile, did you?

'Mr. Sather: Same objection. It isn't material and it isn't cross examination.

'The Court: It will be overruled. Exception.

'A. I did not.

'Q. (Mr. Abrams) And you haven't presented any at all? A. I have not. * * *

'Q. Miss Perry, do you know how much the repair bill was to your automobile?

'Mr. Sather: To which we object. It is not in issue here; incompetent, irrelevant and immaterial and not proper cross examination. * * *

'The Court: She may answer.

'Mr. Sather: Exception.

'A. It was about $90.00.

'Q. (Mr. Abrams) Who paid it?

'Mr. Sather: To which we likewise object.

'The Court: Yes, that is objectionable.'

Appellant charges that these questions were asked solely for the purpose of informing the jury that she carried liability insurance. We cannot see how the cost of repairs on the car or who paid for them was material to any issue in the case, since the appellant was not making any counterclaim for them. It is, however, going too far to assume that, from the questions and the answers made, the jury drew the inference that appellant carried liability insurance or that their verdict was improperly influenced thereby. None of the cases cited by appellant warrants us in holding that, through misconduct of counsel, the jury in this case were informed that appellant carried liability insurance.

The question asked appellant, as to whether she had, or was making, any claim for damages to her car, was not objectionable, and no error was committed by the trial court in overruling appellant's objection thereto.

Appellant, by her requested instruction 9, asked the court, in effect, to charge the jury that, if appellant held her arm out indicating her intention of making a left turn, she had performed her full duty, in the absence of a signal from respondent that he was about to pass. Instead, the court, in instruction 22, told the jury that the exercise of reasonable care might require more; that, even though appellant gave such signal, they should consider whether, in the exercise of reasonable care, considering the traffic on the roads, the time of day and conditions of visibility, the appellant should have taken the additional precaution of looking to the rear Before making the turn.

It must be borne in mind that statutory regulations relative to the conduct of drivers of motor vehicles do not attempt to define what reasonable care is. They set up certain rules of conduct, violation of which carries a presumption of negligence, but a compliance with which does not necessarily fulfill the obligation to exercise reasonable care under given circumstances....