Davis v. North Coast Transp. Co., 22657.

• Citation: 160 Wash. 576,295 P. 921
• Decision Date: 04 February 1931
• Docket Number: 22657.
• Parties: DAVIS v. NORTH COAST TRANSP. CO. et al.
• Court: United States State Supreme Court of Washington

295 P. 921

160 Wash. 576

DAVIS v. NORTH COAST TRANSP. CO. et al.

No. 22657.

Supreme Court of Washington

February 4, 1931

Department 1.

Appeal from Superior Court, Clark County; Geo. B. Simpson, Judge.

Action by Elsie Davis, administratrix of the estate of Fay S. Davis deceased, against the North Coast Transportation Company and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

Barry &amp Morrison and Wilbur, Beckett, Howell & Oppenheimer, all of Portland, Or., and Bogle, Bogle & Gates and Edward G. Dobrin all of Seattle, for appellants.

John Wilkinson, of Vancouver, and Senn & Recken, of Portland, Or., for respondent.

MAIN J.

This action was brought to recover damages for wrongful death. The widow, as executrix of the estate of the deceased, seeks recovery in her own behalf. The cause was tried to the court and a jury, and resulted in a verdice in favor of the plaintiff in the sum of $20,000. Motion for judgment notwithstanding the verdict, or in the alternative for a new trial, being made and overruled, judgment was entered against the defendant the North Coast Transportation Company for the sum of $15,000, and against the defendant Occidental Indemnity Company, the insurer, for $5,000. Both defendants appeal.

The facts are these: The accident which gave rise to the litigation occurred October 18, 1929, at about 10 o'clock p. m. on the Pacific highway four or five miles north of the city of Vancouver. The Pacific highway extends north and south, and is paved to a width of twenty feet. A few feet to the west of the pavement is a guard rail or fence, painted white; on the east side of the pavement there is a dirt or gravel shoulder twenty feet or more in width. The pavement, on the night of the accident, was wet and slippery. Though it was not then raining, there had been a light rainfall a short time previous. Prior to the accident, Fay S. Davis was driving a White truck, referred to as a wrecker, and was towing another truck which had suffered a mishap earlier in the evening something like three miles further north. The front end of the disabled truck was lifted and carried on the rear part of the wrecker. The disabled truck weighed approximately ten thousand pounds, and with the front end elevated the weight was carried largely on the rear wheels. As the truck was being towed, the tire on the left rear wheel either went flat or the rim thereof came off. The wrecker and the truck that it was towing were then moved over very close to the guard rail on the west side of the roadway. A Buick automobile driven by W. E. Hudson was parked a few feet behind, and close to the guard rail. The left wheels of the wrecker, the truck, and the automobile extended over onto the pavement a distance of approximately five feet. The lights on the front of the wrecker and the automobile were dimmed in order not to interfere with the vision of drivers of vehicles approaching from the south. The automobile had on its rear two red lights, and the driver thereof sat in the seat of the car and by use of the pedal threw these lights on and off so as to warn traffic coming from the north. A man was sent to the south a distance of four or five hundred feet with a red flash-light to warn traffic from that direction.

The grade of the highway at this point was about five per cent., rising to the south. Just prior to the accident, a bus owned by the North Coast Transportation Company, and driven by one of its employees, came over the top of the hill four or five hundred feet to the south of the red light which was then being waved back and forth by the man who had been sent up the highway for that purpose. There was no other traffic on the road at the time. The bus struck the wrecker, and then struck Davis, who was working at the left wheel of the truck which was being towed, with the result that Davis sustained injuries from which he subsequently died. The bus, as it came over the hill, was traveling at approximately thirty-five miles an hour. One witness testified that it made no attempt to stop, and disregarded the red light warning which was being waved across the pavement. Other witnesses testified that when the bus came over the hill the driver applied the brakes, and as he did so the rear wheels would skid; he would then release the brakes, and the bus would straighten up; and he continued this until the collision occurred.

The first question is whether the driver of the bus was guilty of negligence, and little need be said upon this question. If he disregarded the red light, as one witness testified, clearly the jury had a right to find negligence. On the other hand, if he did not disregard it, and attempted to apply his brakes. with the result above indicated, there was a question for the jury as to whether he approached the downhill grade at that point at a speed too great, knowing the condition of the highway. The question of negligence was for the jury.

The next question is whether the deceased was guilty of contributory negligence as a matter of law, and this depends upon whether placing the wrecker, the rear wheels of the truck, and the Buick automobile on the west side of the highway, with the left wheels extending five feet over on to the pavement, was a violation of the statutory law of this state. Section 6347, Rem. 1927 Supp., provides that it shall be unlawful for any person to leave any vehicle standing upon the main traveled portion of any highway of this state outside of any incorporated city or town, but that this provision 'shall not apply to any vehicle so disabled as to prohibit the moving of the same. * * *' Section 6362-47 provides that no person shall park or leave standing any vehicle whether attended or unattended upon the paved or improved or main traveled portion of any public highway 'when it is practicable to park or leave such vehicle standing off of the road or improved or main traveled portion of such highway. * * *' It is said that under these statutory provisions it was negligence to not remove the vehicles to a point where all the wheels thereof would clear the pavement.

Whether it was practicable to move the disabled truck further after the trouble with the left wheel was a question of fact. The statutory provisions referred to must be given a reasonable construction. In considering a similar statute, in the case of Mitsuda v. Isbell, 71 Cal.App. 221, 234 P. 928, 933, it was said:

'The language of the above provision is very general, but, in its application, it must be given a construction conformable to reason and common sense. If the language of the section were to be accepted without qualification, there would be no limit of time during which the highways of the state might be used for the purpose of repairing a vehicle getting out of order while being driven over such highways. What the section evidently means, or was intended to mean, is that where some essential part of the mechanical contrivances of a vehicle, while being driven over a highway, gets so out of repair as to render it incapable of performing its work, with the result that such vehicle cannot be moved by the usual method of moving it, then, if it be practicable to remedy the

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