Dawson v. Foster

• Decision Date: 16 September 1932
• Docket Number: 23801.
• Citation: 14 P.2d 458,169 Wash. 516
• Parties: DAWSON v. FOSTER et al.
• Court: Washington Supreme Court

14 P.2d 458

169 Wash. 516

DAWSON v. FOSTER et al.

No. 23801.

Supreme Court of Washington

September 16, 1932

Department 1.

Appeal from Superior Court, King County; J. M. Phillips, Judge.

Action by William A. Dawson against S. A. Foster and wife and T. R Horton and wife. From an adverse judgment, the last-named defendants appeal.

Reversed with directions.

Reynolds Ballinger, Hutson & Boldt, of Seattle, for appellants.

Riddell Brackett & Fowler, of Seattle, for respondent.

Roberts Skeel & Holman and Harry Henke, Jr., all of Seattle, for defendants.

MITCHELL J.

This is a host and guest automobile accident case. It occurred in the early afternoon on a clear day, at the intersection of Woodland Park avenue and 40th street in Seattle. The avenue runs north and south and crosses 40th street at right angles. Both streets were paved. There were double street car tracks on the avenue, the center of the avenue being between the two car tracks. Mr. and Mrs. Horton, as hosts, were taking Mr. and Mrs. Dawson and children to the home of the former for dinner. Mrs. Horton and Mrs. Dawson are sisters. Mr. Horton was driving his car west along the north side of 40th street. Mr. Foster, wife, and children, were driving their car south along the west side of Woodland Park Avenue. The cars collided in the intersection. The front part of the Horton car had gotten beyond the west side of the intersection when it was struck on its rear right fender and wheel by the front end of the Foster car. Mr. Dawson was injured and brought this action against the owners of both cars, complaining that his injuries were caused by the combined negligence of the drivers of the cars. The owners of the different cars appeared separately, each denying negligence on his part, and charging that the negligence of the driver of the other car, only, caused plaintiff's injuries. The case was tried to a jury which returned a verdict against Horton and his wife, only. The appeal is from a judgment on the verdict.

Gross negligence is the rule applicable in this kind of a case. Saxe v. Terry, 140 Wash. 503, 250 P. 27, was the first jury case involving that rule to reach this court. In that case, upon reviewing the authorities upon the subject of the classification of the three degrees of negligence, if was said that gross negligence is the 'want of slight care.' In the next jury case on this subject, Klopfenstein v. Eads, 143 Wash. 104, 254 P. 854, 855, 256 P. 333, we said: '* * * the driver of an auto is not liable for injury to his guest unless there has been gross negligence or wanton injury. Saxe v. Terry, 140 Wash. 503, 250 P. 27. Under the rule of that case, the appellants were required to exercise only slight care toward deceased and would be liable only for gross negligence.'

The rule was followed in subsequent jury cases, such as Blood v. Austin, 149 Wash. 41, 270 P. 103; Dailey v. Phoenix Investment Co., 155 Wash. 597, 285 P. 657; Connolly v. Derby (Wash.) 9 P. (2d) 93. In Blood v. Austin a verdict against the plaintiff was sustained and in each of the other four cases cited there was a decision against the plaintiff, as a matter of law, notwithstanding the verdict.

There was some conflict in the evidence in this case, but our conclusion requires us to consider it from the standpoint most favorable to the respondent, which was substantially as follows: Mr. Dawson, the respondent, testified that he had no recollection of the accident at all other than his getting into the back seat of the car. His wife, who sat by him in the car, testified she did not see the accident or know how it happened. She further said: 'There was nothing about the trip out there which impressed itself upon my mind until the accident happened. It seemed like Mr. Horton started to go pretty fast right Before the accident. I thought he was trying to make a grade or something. Up to that time there was nothing in the situation that in any way impressed me, nothing in particular that aroused my anxiety or anything of that kind.'

Albert Dawson, a son thirteen years of age, who was sitting on his father's lap, testified that he 'was at the accident, but did not see it. It seemed like Mr. Horton's car was going about the ordinary speed.' There is not a particle of testimony of any complaint or objection on the part of the respondent or of any one in the Horton car concerning the manner in which Mr. Horton drove his car.

Mr Foster testified that on approaching the...