Dodge v. Salinger

• Decision Date: 30 August 1923
• Docket Number: 17999.
• Citation: 217 P. 1014,126 Wash. 237
• Parties: DODGE et ux. v. SALINGER et ux., and four other cases.
• Court: Washington Supreme Court

217 P. 1014

126 Wash. 237

DODGE et ux. v. SALINGER et ux., and four other cases.

No. 17999.

Supreme Court of Washington

August 30, 1923

Department 1.

Appeal from Superior Court, King County; Askren, Judge.

Five separate actions between O. R. Dodge and wife, Leland Salinger and wife, Emily Paxton, Loring Salinger, by his guardian ad litem, Leland Salinger, and Setsuzo Ochi, by his guardian ad litem, K. Hiraudi, arising out of an automobile collision. From judgments adverse to Leland Salinger, Loring Salinger, and Setsuzo Ochi, they appeal. Affirmed in part reversed in part, and rendered.

Allen & Griffith, of Seattle, for appellants.

Robert F. Sandall, of Seattle, for respondents.

HOLCOMB J.

On this appeal we are to review five separate actions for damages arising out of a collision occurring between two automobiles at 5:30 p. m. on October 17, 1921, at the intersection of Federal avenue and East Republican street, Seattle. These streets were paved and dry at the time of the collision. Federal avenue runs north and south; East Republican street east and west.

Respondent Dodge was driving a Paige Sports automobile weighing 3,350 pounds, containing three adults and one infant; himself, his wife and infant, and his wife's mother, Mrs. Paxton. He was driving west approaching Federal avenue. He had no curtains on his car. The other car was a Studebaker weighing 2,885 pounds, the occupants of which were Loring Salinger, a 19 year old boy, son of Leland Salinger, the owner of the car, and five other boys near the age of Loring Salinger among them one Ochi, a Japanese boy 18 years of age, a guest riding in the rear seat. The Salinger car was approaching East Republican street from the north.

As usual the controversy is waged over the difficult questions of which car was being driven at an unlawful rate of speed, which car was at or in the intersection first, and which car had the right of way, and the alleged contributory negligence of each driver.

The traffic ordinances of Seattle thought to apply to the situation were alleged and admitted.

The occupants of the Paige car, traveling west on East Republican street, testified positively that their car was being driven at the rate of 15 miles per hour down an 11.3 per cent. grade, under compression, between the street intersections at Federal avenue and the street to the east; that they were in the street intersection and two-thirds of the way across before they saw the other car coming from the north in a straight line towards them at, as Mrs. Paxton said, 'a terrific rate.' She said she first saw the Studebaker car when it was two car lengths away, and shouted to her son-in-law at almost the instant of the collision. Dodge testified that he was at least two-thirds of the way across the street intersection when they were struck; that he was on the right-hand side of the street and driving across the street intersection at about 12 miles per hour. On the other hand, the occupants of the Studebaker car testified equally positively that their car was traveling at the rate of 18 to 20 miles per hour; that some of them saw the Paige car coming from the east down hill towards Federal avenue at the rage of from 20 to 30 miles per hour, come into the street intersection at undiminished speed, and struck them head on about the center of the street intersection north and south, or a little to the south of it. A disinterested witness, one Randall, testified that he crossed Federal avenue just before the collision, going east on East Republican street, and saw the Paige car coming when it was about 30 feet from the east line of the street intersection; that it was traveling about 6 or 7 feet from the curb on the right-hand side of the street and at about 18 miles per hour. He saw the Studebaker just before they came together. Just before the collision occurred he heard an outcry of some kind, which he thought was from one of the women in the Paige car. When he first saw the Studebaker car it was trying to pass the Paige car in the intersection. The Paige car had then slowed down considerably. At the time of the collision the course of the Paige car was straight west on the right side of the street across the intersection, and the course of the Studebaker car was straight south on the right side of the street across the intersection, and the collision occurred near the northwest corner of the intersection; thus showing that each driver was driving on the proper side of the street and that the common point where their lines of travel would intersect was where it did intersect at the moment of the collision, near the northwest corner of the street intersection. Thus, regardless of the condition and position in which the cars were immediately after the collision, and the amount of damage done to each car, it is quite evident, as the trial court believed, that the Paige car must have been in the intersection first, and was struck by the Studebaker car.

Photographs of the two cars in evidence show that the Studebaker car was very badly wrecked. It was in some manner thrown up, with two wheels on the parking strip at the southwest corner of the intersection, against a telephone pole and a tree. The other two wheels were on the pavement outside of the curb. The two wheels on the right side of the car, on the parking strip, were broken down; the other two wheels were not broken down, but the tires were stripped from them, and that side of the car was badly mashed. The rear end of the car plainly shows that a violent blow occurred against the left rear fender, mashing it and mashing the running board down. The Paige car was whirled around to the left and somewhat across the street, and stopped headed to the southwest, almost even across the street from the Studebaker car. The damage to the Paige car consisted of the radiator and front end of the car being bent and pushed to the left, so that the radiator was even with the steering wheel, and the fender on the left side was mashed and bent and pushed upward.

Although the nature of the injuries to the cars alone cannot determine who was at fault, so many things depending on the weight and momentum of the different cars, the speed at which they were traveling, and the ground on which they were traveling and moved after the collision occurred, yet the nature of the injuries to these cars shows that the Paige (respondent's car) ran into the other.

As to the speed of the cars, the trial judge had the witnesses before him and was able to judge of their demeanor, and we are unable to say that the evidence preponderates against the finding of the trial court that the Salinger boy was...