Dailey v. Phoenix Inv. Co.

• Decision Date: 03 March 1930
• Docket Number: 22084.
• Parties: DAILEY v. PHOENIX INV. CO. et al.
• Court: Washington Supreme Court

285 P. 657

155 Wash. 597

DAILEY v. PHOENIX INV. CO. et al.

No. 22084.

Supreme Court of Washington

March 3, 1930

Department 1.

Appeal from Superior Court, Yakima County; Dolph Barnett, Judge.

Action by Mary K. Dailey against the Phoenix Investment Company and another. Judgment for plaintiff, and defendants appeal.

Reversed with instructions.

Grady &amp Velikanje, of Yakima, for appellants.

Rigg &amp Brown and C. W. Halverson, all of Yakima, for respondent.

BEALS J.

This action was brought against both the driver and the owner of an automobile in which plaintiff was riding as a guest at the time of an accident which resulted in the receipt by her of severe personal injuries. She contended that the accident was caused by the gross negligence of the driver of the car, and that, consequently, defendants should respond in damages. From a judgment in plaintiff's favor, entered upon the verdict of a jury, defendants appeal.

On the evening of October 28, 1927, appellant Twohy, a resident of Yakima, invited respondent to attend a dance to be held at a clubhouse about eight miles from the city. The party, which consisted of respondent, another young lady, Mr. Raymond Twohy, and the appellant George Twohy, after enjoying the evening's entertainment, left the clubhouse about midnight in a Nash automobile which weighed about 3,500 pounds, and was equipped with four-wheel brakes and balloon tires, for the purpose of returning to Yakima. Respondent and appellant Twohy (who will be referred to herein as though he were the sole appellant) occupied the front seat, Mr. Twohy driving, the other guests occupying the rear seat. The road to the city, at least for a considerable distance from the clubhouse, was an ordinary gravel road about 20 feet in width. A short distance from the clubhouse, the road became what is referred to in the testimony as the 'straightaway,' of about three-quarters of a mile to a mile in length. At approximately the end of this 'straightaway' another road crossed at right angles the road upon which the parties hereto were proceeding. The right-angle turn, however, had been done away with by a curve, which left an unimproved triangular space between the old right-angle turn and the new curve which formed a connection between the road upon which the parties were driving and the cross-road. In this space, which is referred to in the testimony as 'the triangle,' there stood a telephone pole, and also some large rocks, or boulders, which had been thrown into the 'triangle'; that area being a little below the surface of the road. Testimony introduced by appellant tended to show that there was considerable loose gravel on the road at and near the curve; the gravel being thicker on the right-hand portion of the road, facing toward Yakima, than in the middle thereof. As the automobile entered upon the 'straightaway,' it attained a speed of approximately 40 forty miles an hour, and appellant signalled to a couple of cars ahead of him, in which were riding persons who had also been to the dance, that he desired to pass them. This was safely accomplished, and the car continued on its way. As the car entered upon the curve in the road above referred to, it left the roadbed, and collided with some of the débris in the 'triangle,' the shock throwing respondent from the car and inflicting upon her the injuries of which she complains.

Appellant assigns certain errors; the only one of which that need be considered being that based upon the ruling of the trial court denying his motion for judgment in his favor notwithstanding the verdict of the jury.

Respondent was appellant's guest, and it is the law of this jurisdiction that in such a case the guest can recover damages from the host only in case the latter be guilty of gross negligence which proximately results in injury to the guest. (See decisions of this court hereinafter cited.)

Respondent contends that testimony on her behalf was introduced from which the jury were warranted in finding that her injuries were the result of gross negligence on the part of appellant in driving the automobile. On behalf of respondent it is contended that there is in the record substantial evidence from which the jury may have found that the automobile was proceeding at the rate of at least 60 miles per hour, and that appellant was guilty of gross negligence in the manner in which he attempted to make the turn along the curve leading from one road to the other.

It is, of course, true that a motion for judgment notwithstanding the verdict of a jury should be granted only when there is neither evidence nor reasonable inference to be drawn from evidence upon which the verdict can rest. Bearing this rule in mind, we will consider the evidence from the standpoint most favorable to respondent's contention.

It is undisputed that the automobile driven by appellant passed, a short distance before reaching the curve where the accident occurred, two cars going in the same direction, and that the cars so passed were proceeding at approximately 30 miles per hour. With this as a basis, respondent presents elaborate calculations, which her counsel contend form a reasonable basis for a finding that appellant's car was proceeding at the rate of 60 miles per hour. None of the parties, or witnesses, at the time appellant's automobile passed the other cars, paid any particular attention to that fact. Speeds and distances are estimated in the testimony only approximately.

One of respondent's witnesses, the driver of one of the cars which appellant passed, testified on direct examination that he was then traveling at from 30 [155 Wash. 601] to 35 miles an hour, and on cross-examination testified:

'Q. What is there about the situation that causes you to have any recollection of your speed? A. That is the speed I usually travel.

'Q. And you judge that from your usual speed? A. Yes, sir.'

He later testified on further cross-examination as follows:

'Q. Were you conscious of the fact some car was behind you, wanting to pass? A. Yes.

'Q. Did you move over to your right? A. Yes, I always do----

'Q. It is your custom to move to the right when a car is attempting to pass, whether that is indicated by the horn or by the lights? A. Yes.

'Q. It is your custom to slow down a little? A. I usually slow down, but going at that speed I don't know whether I did.

'Q. You might have done it this time? A. Yes.

'Q. And Mr. Twohy turned out and passed both of you? A. Yes.

'Q. You were close enough together so he could do that? A. Yes.

'Q. About how far was this from the curve? A. I should say a couple of hundred yards, maybe three hundred. It might be five or six--I couldn't say exactly. But it wasn't far.

'Q. It might have been anywhere---- A. Three hundred to six hundred yards.'

It is evident that slight differences in the bases of the calculations as to speed and distance from the place of the accident would cause a very great difference in the result. Indeed, appellant presents on his behalf a series of calculations based upon his view of the evidence which he contends demonstrate that his car was proceeding at a rate not exceeding 42 miles per hour.

In our opinion, the testimony in the record before us does not afford any sufficient basis for such elaborate calculations, based as they are only upon approximations, as those by which respondent seeks to demonstrate the speed at which appellant was driving at and just prior to the time of the accident. The testimony as to the speed of appellant's car and the speed of the cars which he passed were merely estimated by the various witnesses; the place where the cars were so passed was not definitely fixed. The data upon which the calculations are based are not sufficiently definite and precise to make the result reached of any value. Instances doubtless occur in which such calculations may be made with some degree of certainty, but this is not one of them.

From the evidence it clearly appears that shortly before the accident appellant was driving fast enough to pass two cars that were moving at approximately 30 miles per hour. That is all that the evidence upon this point indicates. No circumstances appear which indicate that such driving was grossly negligent.

Respondent, called as a witness on her own behalf, testified on direct examination as follows:

'Q. After you got out on the highway after leaving the club house grounds did you notice the rate of speed at which Mr. Twohy was driving? A. Yes, I did for a distance.

'Q. For how long a distance would you say? A. Well, we didn't go very far after leaving the club house and he started rapidly, and I watched the speedometer until it reached a point about forty. We hadn't passed any cars then, but we were coming to them.

'Q. Did you watch the speedometer any time after that? A. No, I didn't.

'Q. Why did you not notice the speedometer after that? A. Well, I was frightened. I didn't know that highway. I knew there were so many curves, and I was frightened and I thought I would watch the road instead of the speedometer and if I saw any curve signs, which I expected to find, I would ask him to slow down.

'Q. There were other cars on the road, were there? A. Yes.

'Q. Did you pass any other cars between the time you left the club house and the time you reached the curve about a mile and a half below the club house? A. Yes.

'Q. How many cars did you pass? A. Three or four cars from the time we left the club house till we were hurt.

'Q. About how far were you from the curve when you passed these three or four cars? A. We were quite a ways from there.

'Q. Did you notice whether or not Mr. Twohy increased his speed of his car as he passed the other cars? A. Yes he did.

'Q. After getting around them did...