Fetterman v. Levitch
| Decision Date | 10 February 1941 |
| Docket Number | 28110. |
| Citation | 7 Wn.2d 431,109 P.2d 1064 |
| Parties | FETTERMAN v. LEVITCH. |
| Court | Washington Supreme Court |
Department 1.
Action by A. S. Fetterman against Oscar Levitch for personal injuries and property damage resulting from an automoble collision. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Appeal from Superior Court, Spokane County; Hon. Fred H. witt judge.
Witherspoon, Witherspoon & Kelley, of Spokane, for appellant.
James A. Brown and Robert M. Brown, both of Spokane, for respondent.
Plaintiff brought suit to recover for personal injuries and property damage resulting from a collision between two automobiles. The action was tried Before the court and a jury. At the conclusion of plaintiff's evidence, defendant challenged the sufficiency thereof and moved for a nonsuit, and at the conclusion of all the evidence he again interposed a challenge thereto, and at that time moved for a directed verdict. Both motions were denied. The cause was submitted to the jury, and a verdict was returned in favor of plaintiff. A motion by defendant for judgment notwithstanding the verdict was denied, and, thereafter, judgment in the amount of the verdict was entered for plaintiff. Defendant appealed.
The collision occurred at the intersection of Howard street and Twenty-Fourth avenue in the city of Spokane, shortly after noon, on a bright, clear day in April. Howard street runs north and south, Twenty-Fourth avenue runs east and west, and the two streets intersect at a right angle. South of Twenty-Fourth avenue, Howard street is 41 feet wide; north of Twenty-Fourth avenue, it is 30 feet wide. Twenty-Fourth avenue, west of Howard street, is also 41 feet wide, while east of Howard street it is 24 1/2 feet wide. Both streets are paved, and neither of them is an arterial highway.
Respondent was fifty-three years of age at the time of the accident and, in the conduct of his business, that of manufacturers' jobber, had driven automobiles regularly for many years. His testimony as to the events immediately preceding the collision was as follows: Shortly Before the occurrence of the accident, he was driving his Buick sedan in an easterly direction on Twenty-Fourth avenue at a speed of approximately twenty-five miles per hour. Approaching Howard street, he slowed down to eighteen or twenty miles per hour. At a point twenty-five or thirty feet west of the intersection, he looked both to his right and to his left. No traffic was approaching from his left. To the right, he at that point had an unobstructed view of Howard street for a distance of over three hundred feet, to and beyond Twenty-Fifth avenue, which is the next street to the south. Looking to the right, he at that time saw an approaching automobile about forty or fifty feet north of Twenty-Fifth avenue, or about two hundred sixty feet away from the intersection which he was then approaching. The other vehicle was plainly visible, and was traveling at a speed of approximately twenty-five miles per hour. There was nothing in the action of the other driver to indicate that he would accelerate his speed. Upon those observations respondent concluded that he himself had plenty of time to get well over the intersection Before the arrival there of the other car. He therefore did not stop at the intersection but proceeded to cross it. We quote directly his testimony relative to his entrace into the intersection, and as to what transpired thereafter:
Two disinterested witnesses corroborated respondent's testimony to the effect that appellant's automobile entered the intersection at a speed of thirty-five or forty miles per hour, with its brakes screeching.
The force of the impact was such that respondent's automobile was shoved violently across Twenty-Fourth avenue, over the curb at the northeast corner, and came to rest on its side, lying on a portion of the parking strip. Respondent was severely injured, his clothes were ruined, his glasses were lost, and his car was damaged extensively.
Appellant's car, a Pontiac, was being driven by an employee at the time of the collision. The employee gave the following version of the accident: Traveling north on Howard street, he crossed Twenty-Fifth avenue at a speed of approximately ten miles per hour. About forty of fifty feet north of that intersection, he increased his speed to approximately twenty-five miles per hour, and at no time was traveling at a speed greater than that. When a little over eighty feet from the intersection of Howard street and Twenty-Fourth avenue, he observed respondent's car approaching from the west and at about an equal distance from the intersection. Both cars were traveling at about the same rate of speed. After noticing the other car, the driver of appellant's automobile continued 'aways further,' and then stepped on and off his brakes several times, at the same time keeping his eye on the other car. He did not see any children either at the northeast corner of the intersection or crossing Twenty-fourth avenue. About twenty feet from the intersection, he stepped on the brakes for the last time, but did not apply them to the full extent until he was even closer to the intersection. He was unable to state within what distance, while traveling at the rate of twenty-five miles per hour, he could bring the Pontiac car to a stop on a dry street such as existed at the intersection.
Although appellant assigns a considerable number of errors alleged to have been committed by the trial court, he makes but one contention, namely, that respondent was guilty of contributory negligence as a matter of law (1) in failing to look to his right a second time, and (2) in failing to yield the right of way to appellant's car. The two grounds are argued together, and we shall likewise consider them conjunctively.
The basic rule underlying both grounds of the contention is prescribed by Rem.Rev.Stat. § 6360-88, which provides: 'It shall be the duty of every operator of any vehicle on approaching public highway intersectios to look out for and give right of way to vehicles on their right, simultaneously approaching a given point within the intersection, and whether such vehicle first enter and reach the intersection or not: Provided, This section shall not apply to operators on arterial public highways.' Construing that section (formerly Remington's 1927 Supp. § 6362-41, subd. 14), this court, in the well-known case of Martin v. Hadenfeldt, 157 Wash. 563, 289 P. 533, 534, laid down a rule, or set of rules, to be applied to 'intersection cases.' The court there said:
'* * * an instruction upon the subject should embody all of the following elements:
',1. All rights of way are relative, and the duty to avoid accident or collisions at street intersections rests upon both drivers.
'2. The primary duty of avoiding such accidents rests upon the driver on the left, which duty he must perform with reasonable regard to the maintenance of a fair margin of safety at all times.
'3. If two cars collide within the intersection, then they were simultaneously approaching a given point within the intersection, within the meaning of the statute, unless.
The principal ground upon which appellant bases his contention is the one relative to respondent's failure to look to his right a second time. Respondent himself testified that he was twenty-five or thirty feet from the intersection when he looked to the right, and that he did not look again in that direction Before , or immediately on, entering the intersection. Appellant's position seems to be that it was the duty of respondent to look to his right at the westerly curb line of the intersection, and that his failure to look at that point constituted negligence as a matter of law.
It will be noted that Rem.Rev.Stat. § 6360-88, quoted above, does not require the driver on the left to look to his right on entering an intersection, but simply requires him, on approaching public highway intersections, to look out for and give right of way to vehicles on his right simultaneously approaching a given point within the intersection.
Although, literally, the curb lines, extended mark the boundaries of an intersection,...
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