Ebling v. Nielsen

• Decision Date: 09 January 1920
• Docket Number: 15522.
• Court: Washington Supreme Court
• Parties: EBLING v. NIELSEN et al.

186 P. 887

109 Wash. 355

EBLING v. NIELSEN et al.

No. 15522.

Supreme Court of Washington

January 9, 1920

Department 1.

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Action by B. F. Ebling against Otto Nielsen and others. Judgment for plaintiff, and defendants appeal. Reversed, with directions.

Ogden &amp Clarke and Joseph Oakland, all of Seattle, for appellants.

J Speed Smith and Henry Elliott, Jr., both of Seattle, for respondent.

MITCHELL J.

This action was brought to recover for damages to respondent's automobile on account of a rear-end collision with a large motortruck belonging to appellants. The case was tried without a jury. The court made findings and conclusions to the effect that the collision was caused by the negligence of appellants and entered judgment accordingly from which the appeal is taken.

Appellants contend the weight of the evidence dismisses them from the charge of negligence, and affirmatively and clearly establishes contributory negligence which denies respondent any right of recovery. Appellants are charged with a violation of that portion of the amendment of the motor vehicle act found in chapter 155, at pages 636, 637, Session Laws of 1917, which provides:

'Such motor vehicle shall have attached to the rear not less than one lamp showing a red light, visible at least two hundred feet in the rear of such machine. * * *'

The collision occurred on the Pacific Highway, about eight miles south of Seattle, about 6 o'clock in the evening, November 8, 1918, at which time it was dark and a heavy rain was falling. Because of engine trouble appellants had stopped their motortruck, facing south, on the right-hand margin of the road, and had gone to procure assistance, after lighting a lamp showing a red light to the rear of the truck, which was burning at the time of the collision. A boy 15 years of age was left with the truck. There is a sharp dispute in the evidence as to the power of the red light. Appellants' proof tends to show it was sufficient, particularly so when taken in connection with the plausible contention that the reach of visibility of the red light exacted by the law does not contemplate weather conditions such as existed at the time of the accident. On the contrary, respondent's proof shows the light was very dim and insufficient. Out of the conflict the trial court was convinced in this respect against the appellants, and an examination of the evidence satisfies us it preponderates that way. A thing which is done in violation of positive law is in itself negligence. Engelker v. Seattle Electric Co., 50 Wash. 196, 96 P. 1039; Ballard v. Collins, 63 Wash. 493, 115 P. 1050.

We think the contributory negligence of the respondent equally manifest. The accident occurred on a straight line of the highway. Respondent, driving south, was bowling along, 20 miles an hour, in the dark, a heavy rain falling. He had a cleaner on his wind shield, but did not know how long before the accident he had last used it. He had a traveling companion by the name of Hennesey. Respondent's own account of the manner in which the accident happened is as follows:

'When we were within about 25 feet of this truck Mr. Hennesey said, 'Ben, there is a car ahead.' I said, 'I see it,' and I put may foot on the foot brake, and when I saw I could not stop I threw the emergency on, and when I did that we just skidded right on. I could not swing out because just about the time when we saw this there was a car coming the other way, and I would have collided with the other car if I turned out suddenly from the back of the truck.'

Under cross-examination he went somewhat more into details, as follows:

'Q. Did your brakes lock the wheels? A. The emergency locked the wheels because I threw it on just as hard as I could.

'Q. How far do you think you went after your wheels locked? A. The wheels locked within about 4 or 5 feet of the truck, I judge. The whole thing came so fast that there was very little chance to do anything but use the best judgment that you could.

'Q. How far were you from the truck when you first put on your foot brake? A. About 25 feet.

'Q. How far were you from the truck when you threw on the emergency? A. About 10 feet, I judge.

'Q. And the impact followed practically almost simultaneously? A. Yes sir; your mind works with your feet automatically.

'Q. Did the emergency lock the wheels? A. Yes, sir; and I skidded right under the

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