Elmer v. Vanderford, 39238
| Citation | 74 Wn.2d 546,445 P.2d 612 |
| Decision Date | 03 October 1968 |
| Docket Number | No. 39238,39238 |
| Court | United States State Supreme Court of Washington |
| Parties | Harold R. ELMER, Guardian ad Litem for Richard T. Elmer, a Minor, Respondent, v. Louis N. VANDERFORD, Appellant. |
Karr, Tuttle, Campbell, Koch & Campbell, Craig P. Campbell, Seattle, for appellant.
Chamberlin & Johnson, G. B. Chamberlin, Port Angeles, for respondent.
Respondent, Harold R. Elmer, as guardian ad litem on behalf of his minor son, instituted this action to recover compensation for property damage and personal injuries sustained by his son when the motor scooter his son was operating collided with the rear of an automobile driven by appellant, Louis N. Vanderford. From a jury verdict favorable to respondent, appellant prosecutes this appeal.
The circumstances surrounding the accident, as derivable from the statement of facts, are somewhat obscure due to the fact that the witnesses in their testimony made references to drawings and illustrations which were not made a part of the record. We are, accordingly, handicapped in reconstructing and evaluating all of the pertinent occurrences.
From the uncontroverted testimony, it appears that on a July afternoon appellant's automobile was parked along the right or north curb of Eighth Street, Port Angeles, Washington, heading west. There was at least one car parked at either end of appellant's vehicle, with adequate space for easy maneuverability left between them. The weather was slightly misty. Appellant, upon returning from an errand, entered his vehicle and without signaling his intentions by hand or electric turn signal, drove out of his parking place onto the westbound travel lane of the street.
At this same time, respondent's son (hereafter referred to as respondent), then 19 years old, was driving his motor scooter west on Eighth Street and collided with the rear of appellant's vehicle.
The time, speed, and distance factors involved in the accident are in dispute and beclouded somewhat by the omission of the demonstrative aids used at the trial.
Respondent's version of the event may be summarized by the following quotation from his testimony:
Well, as I was approaching Peabody Street--I remember about a couple blocks back, I remember hitting a bump, I guess when they paved the road or something there was a bump there, and that made me look at my speedometer, and as I approached the State Patrol office I knew I was going twenty, and then all of a sudden from the side a car pulled out in front of me, I didn't have a chance to apply the brakes, all I could do was yell, and then there was a collision and I was flipped, I don't know how I was flipped but I remember coming to my senses on the pavement and--sometimes it's hard, you don't remember, the pains you go through--
Respondent estimated that he was from 10 to 20 feet from appellant's car when it pulled in front in him and that at that time the automobile was traveling approximately 20 miles an hour. He further testified that the brakes on his motor scooter were in good condition, and that any weakness of the brakes discernible after the accident was attributable to damage arising out of the collision. Respondent also stated that had time and distance permitted he could have avoided the accident by either stopping, turning out, or 'demping' his motor scooter before impact.
On the other hand, appellant's version of events leading up to the collision was to the effect that he had driven upwards of 60 or more feet from his parked position and was traveling at 15 miles an hour when in a single instant he heard an exclamation, saw respondent in his rear view mirror, and felt the impact. He produced testimony to the effect that post-accident examination of respondent's motor scooter indicated that the brakes were very weak and that respondent or his father admitted to him that such was their condition before the accident.
Testimony of other witnesses variously placed the point of impact from 50 to 60 or more feet west of a point where the rear of appellant's automobile would have been situated while parked along the curb. One witness estimated the speed of the respective vehicles before and at impact at 8 to 10 miles an hour for appellant's automobile and 16 to 20 miles an hour for respondent's motor scooter.
The premise for respondent's claim for relief lay in his allegation that appellant failed to yield the right of way and to display an appropriate signal before leaving his parked position. By way of affirmative defense, appellant alleged that respondent was contributorially negligent in not maintaining a proper lookout for traffic ahead and in failing to maintain the brakes on his motor scooter in a proper condition.
The allegations of negligence and contributory negligence were submitted to the jury, who, in turn, as we have indicated, found in favor of respondent. Appellant's post-trial motions for judgment notwithstanding the verdict and, alternatively, for a new trial were denied.
Appellant first contends that his motion for judgment notwithstanding the verdict should have been granted. Appellant predicates this contention upon his assertion that the time, speed, and distance factors involved uncontrovertably established respondent's lack of attentiveness and resultant contributory negligence as a matter of law. He supports this argument with comprehensive mathematical computations, and references to inconsistencies in the testimony of respondent.
We approach this contention with an eye to the oft-cited rule to the effect that:
Such a motion involves no element of discretion and will not be granted unless the court can say, as a matter of law, that there is neither evidence nor reasonable inference from evidence sufficient to sustain the verdict. In ruling on a motion for judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the party against whom the motion is made, and all material evidence favorable to the contention of the party benefited by the verdict must be taken as true.
If there is substantial evidence supporting the verdict of the jury, as distinguished from a mere scintilla of evidence, the verdict must stand. Grange v. Finlay, 58 Wash.2d 528, 529, 364 P.2d...
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Haslund v. City of Seattle
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