Erickson v. Barnes

• Decision Date: 20 November 1940
• Docket Number: 27726.
• Citation: 6 Wn.2d 251,107 P.2d 348
• Parties: ERICKSON v. BARNES et al.
• Court: Washington Supreme Court

107 P.2d 348

6 Wn.2d 251

ERICKSON v. BARNES et al.

No. 27726.

Supreme Court of Washington, En Banc.

November 20, 1940

Action by Thelma I. Erickson, administratrix of the estate of Clark T. Erickson, deceased, against L. T. Barnes and another for the death of Clark T. Erickson, deceased. From a judgment for defendants, plaintiff appeals.

Affirmed.

MAIN J., BLAKE, C.J., and MILLARD, J., dissenting.

In action for death of motorist whose automobile collided head-on with truck and trailer on straight, unobstructed road on a clear, dry morning, where it appeared from evidence of physical facts and beyond all question that right front corner of automobile came into collision with the right front corner of truck in approximately the middle of the highway, a jury case was presented.

Rem.Rev.Stat § 6360-76.

Appeal from Superior Court, Spokane County; Louis F. Bunge, judge.

Thomas A. E. Lally and John J. Lally, both of Spokane, for appellant.

H. Earl Davis, of Spokane, for respondents.

ROBINSON Justice.

This controversy arises out of a collision between a truck and trailer and an automobile. The vehicles approached each other on a straight, twenty-foot arterial highway. It was a dry clear morning. There were no other cars or intervening objects on the road, and each vehicle was perfectly visible to the other while the last mile separating them was being traversed. It was not a case of side-swiping. On the contrary, the physical facts shown by photographs introduced by both parties, testified to by witnesses introduced by both parties, and contradicted by no one, show that it was a head-on collision in which the right front corner of each vehicle struck the right front corner of the other. Furthermore, it appears beyond all dispute that contact took place almost squarely in the middle of the road. Each of the vehicles was, therefore, being driven wholly or partly out of its proper lane, and, unless excusatory facts appear, the conclusion must follow that both drivers were negligently disobeying the following statutory safety requirement: 'Whenever any person operating any vehicle upon any public highway of this state shall meet or approach a vehicle traveling in the opposite direction, such person shall seasonably turn and drive such vehicle as far to the right of the center of such highway as is practicable. * * *' Laws of 1937, ch. 189, § 76, p. 892, Rem.Rev.Stat. Vol. 7A, § 6360-76.

Clark T. Erickson, the driver of the automobile, died without recovering consciousness. This action was brought by his widow as administratrix. She alleged, as the trial court said in stating the issues to the jury, that the driver of the truck and trailer was negligent in the following particulars:

'1. That he drove it at an unlawful and excessive rate of speed;

'2. That he drove said vehicle on the unlawful side of said road, to-wit: on the southerly or left lane, and on the southerly and his left side of said center line thereof;

'3. That he fell asleep in driving said vehicle and thereby permitted the same to be on the unlawful side of said highway at some distance prior thereto and at the time of the said collision, and in this manner allowed said vehicle to be out of control;

'4. That he had ample time to see, or by the exercise of reasonable care would have seen that a collision with the said Chevrolet and deceased was imminent and made no effort to avoid it or to operate the brakes of said vehicle;

'5. That the brakes on said vehicle were so worn and out of proper condition and repair that they could not be applied efficiently or at all to stop it to avoid said collision.'

The defendants denied these allegations and set up various grounds of contributory negligence, relying particularly upon the allegation that, at and immediately prior to the collision, the deceased was driving upon the wrong side of the highway. The jury found for the defendants.

The appellant submitted no substantial evidence to the effect that the defendant driver was asleep, nor was there any evidence that the brakes of his vehicle were out of repair, nor any direct evidence that defendant driver failed to use them. In fact, as appellant frankly states, she relied largely upon a presumption. We quote from the appellant's opening brief: 'As the deceased never regained consciousness, and there were no witnesses to the collision, appellant's case consisted of the presumption of due care that exists on behalf of the deceased, the statements of the respondent driver, the day following the collision, as set out above, and some admissions made by him in his pre-trial deposition. The only direct testimony as to what the deceased did, is the uncorroborated testimony of the respondent truck driver.'

If, by the words 'direct testimony' in the last sentence of the statement, just quoted, the appellant means evidence given by eye witnesses, the statement is accurate enough, but there was a great deal of evidence introduced by both parties to the case, tending to corroborate the evidence of the truck driver, that, prior to and at the time of the collision, Mr. Erickson was driving on the wrong side of the road. Photographs and other evidence introduced by both parties show that he must have been. In fact, there is no substantial evidence to the contrary, and, as we shall see later, the appellant, as the basis for her major contention on appeal, assumes that this was so, since she argues that the court erred, to her prejudice, in not submitting the case on the doctrine of the last clear chance.

The strip of highway upon which the collision occurred is between Davenport and Creston. The road, looking westerly at that point, runs nearly northwest. For convenience, we will speak of it as if it ran east and west. Erickson had left Wilbur in his automobile a little after six a. m., and was driving east to Spokane. The truck, with a semi-trailer attached, had left Spokane at about 4:30 a. m., en route west to Wenatchee. The collision occurred at a point very slightly to the westward of the low point of a slight dip in the highway and after each of the vehicles had approached each other by descending a slight grade about a half mile in length. At the bottom of the incline, coming from the east, a county road enters the arterial highway from the south. About one hundred and fifty feet farther west there is a passable road leading off to the north, but this is a private road and is closed by a gate about seventy-five feet after it leaves the highway.

The collision occurred between the two side roads, probably about twenty-five feet to the westward of the road coming in from the south. The colliding vehicles brought up at the north side of the roadway, at a distance westerly from the point of collision variously estimated by a number of witnesses at from fifty to one hundred feet. When they came to rest, the front half of the automobile was on the north shoulder of the road, with the rear end extending out at an angle into the north lane. The truck's right front wheel was also on the shoulder, and the truck itself angled out into the roadway, but entirely within the north lane. The rear end of the trailer, however, was well within the south lane, just how far within it is a disputed point. Several witnesses said, less than five feet, and that there was room to pass it without going off the pavement. Others said that, in order to pass, a small portion of the shoulder had to be used. We do not regard its exact position as of great importance. That the truck was astride the yellow line when the collision happened was not only admitted by its driver, but is shown conclusively by the physical facts. It may even have been south of it immediately prior to the collision. There was a hitchhiker on the truck, but he was asleep when the collision occurred. He testified, however, that there were deep gouges in the roadway leading from the front of the wrecked automobile back to the point of collision in the center of the road. The right front wheel was broken off the axle, and, according to his testimony, the deepest gouge was made by the right end of the front axle of the automobile. There is other evidence to this effect, and it said, in appellant's brief: '* * * Those scratches, probably made by the front broken axle and right wheel of the Chevrolet, start on the south side of the yellow line. * * *'

We cannot agree that they start on the south side. This statement in the appellant's brief is based upon her counsel's interpretation of Exhibit 29, a photograph made more than six months after the event. The evidence upon the point is ample, and comes largely from the lips of the appellant's witnesses. Walter Erickson, brother of the deceased, clearly stated, at least twice, that all the scratches and gouges in the pavement were north of the yellow line, and offered two photographs, which he took a week after the collision, in corroboration of that statement. These photographs are in the record as plaintiff's exhibits 9 and 13, and seem to us to establish the point. Edward H. Erickson, father of the deceased, also testified that they were north of the yellow line. Alwert, the hitchhiker, who was also plaintiff's witness, so testified. Frank Romburg, a Lincoln county deputy sheriff, who reached the scene within an hour after the collision, testified that the gouges and scratches were wholly north of the yellow line. The defendant Barnes testified to the same effect. This evidence, coming from both sides of the case and fortified by corroborating photographs, leaves no room for doubt but that the right side of the Erickson car was right at the south edge of the north lane when the collision occurred, although the statute, heretofore quoted, required it to be at the...