Emanuel v. Wise, 28455.
| Decision Date | 08 November 1941 |
| Docket Number | 28455. |
| Citation | 11 Wn.2d 198,118 P.2d 969 |
| Parties | EMANUEL et ux. v. WISE et ux. |
| Court | Washington Supreme Court |
Department 1.
Action by Eric Emanuel and wife against George Wise and wife for personal injuries sustained by named plaintiff and for damage to plaintiffs' truck resulting from a collision with truck of defendants, wherein defendants filed a cross-complaint to recover for damage to their truck and for personal injuries to named defendant. From a judgment of dismissal, entered upon defendants' motion for nonsuit defendants having waived their cross-complaint, plaintiffs appeal.
Judgment affirmed.
Appeal from Superior Court, King County; Howard M. Findley, Judge.
Elliott & Kells, of Seattle, for appellants.
DuPuis & Ferguson, of Seattle, for respondents.
This action was instituted to recover for personal injuries sustained by plaintiff husband and for damage to plaintiffs' truck resulting from collision of that truck with a truck operated and owned by defendants. Defendants answered, denied negligence on their part, pleaded contributory negligence of plaintiffs as an affirmative defense and by cross-complaint sought to recover for damage to their truck and for personal injuries to defendant husband. At the conclusion of plaintiffs' case defendants having waived their cross-complaint and the court having discharged the jury, defendants' motion for nonsuit on the ground of contributory negligence as a matter of law was granted. From judgment of dismissal, their motion for a new trial having been denied, plaintiffs appealed.
It is the position of appellants that contributory negligence is an affirmative defense and it was respondents' burden to establish same. It is also argued that in our determination of the question whether appellants were guilty of contributory negligence which, as a matter of law, bars recovery, we must regard as true all competent evidence which is favorable to appellants and must also give to them the benefit of every favorable inference that can reasonably be drawn from such evidence.
While the burden is imposed upon the defendant of proving contributory negligence of the plaintiff, the plaintiff's evidence or pleadings may serve the function of showing the plaintiff's contributory negligence. Hynek v. City of Seattle, 7 Wash.2d 386, 111 P.2d 247.
We have consistently held that ordinarily the question whether there has been negligence or contributory negligence is one for the jury; however, if the facts are such that all reasonable men must draw the same conclusion from them the question of negligence or contributory negligence is then considered as one of law for the court.
In the light of the foregoing rules the evidence (the only evidence in the case is that which was adduced on behalf of appellants), which is summarized as follows, presents a factual situation in which the question of contributory negligene is one of law for the court.
The accident out of which this action arose occurred within the intersection of Dearborn street and Seventh avenue south in the city of Seattle, May 21, 1940, at which time the streets were dry, visibility was good (the sun was shining) and there was no other traffic to obstruct the vision of the parties. The course of Dearborn street, which is an arterial highway sixty feet wide, is east and west. The lanes on each side of the center of the highway are eight and one-half feet wide and are paved with concrete. The outside lanes are paved with black top. The street is intersected at right angles by Seventh avenue south which is also sixty feet wide. There is no center marker and there are no entrance markers at this intersection. Eric Emanuel, who had operated motor vehicles for more than twenty years in the city of Seattle, was operating appellants' Studebaker truck (which weighed about four tons and had a load thereon of the weight of approximately two tons) east on Dearborn street at the rate of seven miles an hour on the inside lane, near the center line, with the intention of turning left on Seventh avenue south and...
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Billingsley v. Rovig-Temple Co.
...the care to be exercised in maintaining a margin of safety commensurate with the needs of self-protection. In Emanuel v. Wise, 11 Wash.2d 198, 118 P.2d 969, 971, this court discussed the problem of distance and time in connection with a reasonable margin of The relevant facts, as well as th......
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...two seconds to clear the intersection, leaving him less than three seconds to take the right of way. The language used in Emanuel v. Wise, 11 Wash.2d 198, 118 P.2d 969, quoted approvingly in Billingsley v. Rovig-Temple Co., supra, is most apt: '* * * In other words, respondents' [defendants......
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...of impact, such was insufficient and speed, as a matter of law, was not the proximate cause of the accident. Cf. Emanuel v. Wise, (11 Wash.2d 198, 118 P.2d 969 (1941)). If plaintiffs' speed is increased as defendants would have it, the margin of safety is reduced, thereby decreasing even fu......
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Stallinger v. Johnson
... ... Miller v. Asbury, (Wash. 1942) 13 Wn.2d 533, 125 ... P.2d 652 at 654; Emanuel v. Wise, (Wash. 1941); 11 ... Wn.2d 198, 118 P.2d 969 at 971; Hauswirth v. Pom-Arleau, ... ...