Day v. Polley

• Decision Date: 09 April 1928
• Docket Number: 20997.
• Citation: 147 Wash. 419,266 P. 169
• Parties: DAY v. POLLEY et al.
• Court: Washington Supreme Court

266 P. 169

147 Wash. 419

DAY v. POLLEY et al.

No. 20997.

Supreme Court of Washington

April 9, 1928

Department 2.

Appeal from Superior Court, Spokane County; C. G. Jeffers, Judge.

Action by George H. Day against H. L. Polley and others. Judgment for plaintiff, and defendants appeal. Affirmed.

James A. Brown and Post & Russell, all of Spokane, for appellants.

O. C Moore, of Spokane, for respondent.

HOLCOMB, J.

The automobile collision, resulting in the action of respondent against appellants and the recovery by respondent of a substantial amount in damages, occurred at the corner of Fourth avenue and Walnut street, in Spokane, at about 10 o'clock p. m. on December 24, 1926. The weather was cold and the streets in that locality were covered with some snow and ice. The witness for appellants contended there were ruts in solid ice on Fourth avenue, on which he was driving the car belonging to appellants, three or four inches deep. The evidence for respondent was that either the witnesses did not notice snow or ice of any considerable depth, or, in one instance, that there was ice about an inch deep.

Respondent was driving southerly on Walnut street in a Velie touring car approaching Fourth avenue, which runs east and west across Walnut street. With him in his car were his wife, his daughter, and mother-in-law. He and his wife testified that he had no curtain on the right front part of his car at that time and had not had for about two years. The photographic exhibit in the record which respondent testified showed the car in the same condition a short time previous to the time of the trial as it was in immediately after the wreck by the collision, shows that the rear wheels of the Velie car had chains on them. Appellants' car had no chains on. When respondent approached Walnut street, he was going 15 or 16 miles an hour and continued across the street at that rate of speed until the collision occurred. When a short distance from the intersection of Fourth avenue and Walnut street where a good view could be had to his right along the north curb of Fourth avenue and west of Walnut street, he looked to his right down Walnut street to the west and saw a car approaching, as he judged, about one-half down the block to the west or about 150 feet from the intersection. Respondent was driving at a distance of about 6 feet from the west curb line of Walnut street extended across Fourth avenue. There are double tracks of a street car line in Walnut street from the north until Fourth avenue is reached, when they turn west into Fourth avenue. They do not make a sharp curve in the center of the intersection, but make a more gradual curve by curving near to the corner of the intersection. The streets intersecting each other there are both 50 feet wide. Respondent's evidence was that after seeing the car of appellants about 150 feet away, he proceeded and was struck when about three-fourths of the distance across the intersection, at about 10 feet from the southwest corner of the intersection. His car was struck on the right rear, breaking the right rear wheel completely off crumpling the right fender and otherwise damaging the rear part of the car, and throwing the car entirely across Fourth avenue against the curb some distance south of the southeast corner of the intersection, facing in the opposite direction to that in which it had been traveling. The car of appellants was brought to a stop on Fourth avenue, a short distance east of the southeast corner of the intersection.

The car of appellants was driven by Polley. He testified that he saw the lights of respondent's car when he was at a distance of from 50 to 75 feet from the intersection. He said he applied the emergency brake of the car he was driving, but that on account of the snow and ice and being in icy ruts he could not stop the car.

The evidence on behalf of respondent was all to the effect that respondent's car had completely crossed both street car tracks when struck. It must have been at least three-fourths of the way across the intersection.

Respondent charged negligence on the part of appellants in that Polley was driving the car belonging to appellants without signal or warning and at an excessive rate of speed in violation of the state law and of section 37 of an ordinance of Spokane relating to the operation of vehicles at the intersections of public highways.

The answer charged contributory negligence on the part of respondent in that he was operating his automobile in a negligent manner and in violation of the ordinance of Spokane and the state law in that he crossed the street intersection at a rate of speed greater than 12 miles per hour, and also that he failed to give right of way to a vehicle on his right when approaching a highway intersection, which vehicle was simultaneously approaching a given point.

The reply admitted the state law and the ordinance of Spokane as pleaded, but denied violation of the terms thereof.

At the close of respondent's case, appellants challenged the sufficiency of the evidence and moved for judgment in their favor, which was denied. After appellants had introduced their evidence in defense, they renewed their challenge to the sufficiency of the evidence and motion for judgment in their favor, which was denied.

After judgment had been entered on the verdict, motion for a new trial, and also for a motion notwithstanding the verdict were duly filed, but later appellants waived the motion for a new trial and urged that the motion for judgment n. o. v. should be granted.

All of the assignments of error by appellants involve only the sufficiency of the evidence to sustain any verdict and judgment against them.

It is first insisted that respondent was negligent in violating the state statute and the...