Feldmiller v. Olson
| Decision Date | 13 February 1969 |
| Docket Number | No. 39484,39484 |
| Court | Washington Supreme Court |
| Parties | Harry FELDMILLER, Respondent, v. Bruce K. OLSON and Margaret Olson, his wife, Respondents, Lionel F. Leonard and Mrs. Lionel F. Leonard, his wife, Appellants. |
Reed, McClure & Moceri, Thomas W. Huber, Seattle, for appellants.
McMullen, Brooke, Knapp & Grenier, E. H. Knapp, Jr., Seattle, Ostrander & Van Eaton, Robert H. Van Eaton, Kirkland, for respondents.
Benson Highway, in King County, also known as 108th S.E., is a two-lane arterial highway that extends north and south. S.E. 181st street joins it at a right angle from the east forming a 'T' intersection, from the east forming a 'T' intersection,
Plaintiff-respondent Feldmiller was driving south on Benson Highway. He was on his side of the road traveling about 35 miles per hour. The speed limit was 45 miles per hour.
Defendant-respondent Olson was driving north on Benson Highway preceded by an automobile driven by an unknown driver. We refer to this automobile as the 'hit and run' car.
Defendant-appellant Leonard was proceeding west on S.E. 181st. Whether he obeyed the stop sign at the northeast corner of the intersection before turning north on Benson Highway is a disputed question of fact that was submitted to the jury.
Plaintiff-respondent commenced this action against defendant-respondent Olson and defendant-appellant Leonard upon the theory that their joint and concurrent negligence caused the accident. The 'hit and run' car, after sideswiping plaintiff, disappeared.
Defendant Olson admitted his car collided with plaintiff's automobile; alleged that the sole and proximate cause of the collision was the negligent operation of an automobile by defendant Leonard, creating an emergent situation; and cross-claimed against Leonard for damages.
Defendant Leonard denied negligence and alleged that defendant Olson was chargeable with contributory negligence. It is not claimed that plaintiff Feldmiller was negligent in any manner.
The crux of this action is defendant Olson's theory that defendant Leonard entered the arterial highway from 181st street at a time when it was dangerous to do so, thus creating an emergent situation causing the northbound Olson and the 'hit and run' vehicles to swerve into the southbound lane and strike plaintiff Feldmiller's automobile.
Defendant Leonard testified that he saw the accident happen when he looked into his rear-view mirror. He was then proceeding north on Benson Highway about 10 miles per hour.
No error is assigned to jury instructions given.
The jury returned a verdict of $7,500 damages in favor of plaintiff Feldmiller against defendant Leonard, and a $22,500 verdict in favor of defendant Olson on his cross-claim against defendant Leonard.
State Patrolman James F. Sprague arrived at the scene about five minutes after the accident. He was called as a witness by plaintiff Feldmiller. Over objection, the patrolman testified about a conversation he had with defendant Olson in the hospital 45 minutes after the accident. Defendant Leonard assigns error to the court's admission of this testimony and the court's refusal to strike it.
Upon objection by counsel for defendant Leonard, the trial judge stated:
I will sustain the objection made that the statements made by Mr. Olson may or may not be admissions on his part against him. They are admissible as evidence only against him (Olson) and They would not be evidence against the other defendant Leonard. (Italics ours.)
The trial court immediately recognized that the challenged testimony may be in the nature of admissions of an opponent of the party calling the witness. What a party has said, provided it is unprivileged and relevant, is admissible against him. Raborn v. Hayton, 34 Wash.2d 105, 208 P.2d 133 (1949), and authorities cited. The jury was aware that the testimony could bind only defendant Olson; it was not admitted as evidence against defendant Leonard. The assignment of error is not well taken.
Almost a year before trial, defendant Olson stated in a deposition that the automobile that came from S.E. 181st street onto Benson Highway was ...
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