Eggert v. Schumacher

• Decision Date: 12 May 1933
• Docket Number: 24168.
• Citation: 22 P.2d 52,173 Wash. 119
• Parties: EGGERT v. SCHUMACHER.
• Court: Washington Supreme Court

22 P.2d 52

173 Wash. 119

EGGERT v. SCHUMACHER.

No. 24168.

Supreme Court of Washington

May 12, 1933

Department 1.

Appeal from Superior Court, Spokane County; Joseph B. Lindsley Judge.

Action by Charles W. Eggert against Herman O. Schumacher. From an order granting the plaintiff's motion for a new trial after the defendant's motion for a directed verdict and for a nonsuit was granted, the defendant appeals.

Affirmed.

Harry M. Morey, of Spokane, for appellant.

Robert F. Waldron and L. Vincent Donahue, both of Spokane, for respondent.

HOLCOMB Justice.

This appeal results from an order granting a new trial in a case growing out of an automobile collision, tried to the court and a jury. At the conclusion of the testimony for respondent, appellant challenged the sufficiency of the evidence and moved for a nonsuit; which challenge and motion were granted. Later, upon motion for a new trial, the trial court reversed its decision and granted the new trial.

In granting the new trial, the trial judge summed up the evidence, in brief, as follows:

'The testimony in this case is that Schumacher slid into this intersection with his brakes locked at something like twenty, twenty-two, or twenty-five miles per hour. That naturally implies that preceding the time he applied his brakes he was proceeding at a speed in excess of that on a slippery pavement. Except for the fact that the pavement was icy and slippery the application of his brakes probably would have stopped his car in sufficient time to have avoided collision with plaintiff's car and he would have gotten out of the way. The evidence shows that Schumacher's car slid for some distance with its brakes locked, at the speed indicated, and collided with the side of the other car and pushed it some distance up on the curb, not overturning it.

'As I say, analyzing the testimony from this point, and taking into consideration the time immediately preceding the application of the brakes on the defendant's car, while the speed of the car might have been within the legal limit at the point of operation, yet it was too great, considering the surface of the highway, the surface of the street and the slippery condition to safely make an emergency stop within the intersection.'

Examination of the statement of facts discloses that the above summary by the trial judge was very accurate.

Whether respondent was guilty of contributory negligene, as a matter of law, depends upon something like the same circumstances and conditions referred to in the foregoing summary by the trial judge as to the icy and slippery condition of the street intersection and the condition of traffic at that time.

The testimony for respondent was that he was returning to work from lunch at about 1 p. m. on November 26, 1931, driving north on Wall street, in Spokane. He approached the intersection of Second avenue and Wall street, and, on account of the pavement being icy and slippery and the traffic usually being heavy at that hour of the day, he brought his car to a stop, looked in both directions, that is, both east and west, and saw no car approaching. He then shifted into gear and started slowly across the intersection. When he got about halfway, or a little more, he suddenly heard brakes screech, and, as he glanced to the side, he saw the car of appellant coming straight for him. In the next instant, appellant had struck the car of respondent broadside, shoving respondent's car sideways to the northwest corner, almost to the curb. When respondent looked toward the east, from which direction appellant was driving, he could see no car approaching the intersection from that direction within 200 feet. After stopping at the intersection, respondent started up at about 6 miles per hour, and gained possibly to 10 or 12 miles per hour, when he was struck. He had gone about 8...