Fisher v. Hemrich Brewing Co.

• Decision Date: 05 September 1935
• Docket Number: 25603.
• Citation: 49 P.2d 1,183 Wash. 489
• Parties: FISHER v. HEMRICH BREWING CO. et al.
• Court: Washington Supreme Court

49 P.2d 1

183 Wash. 489

FISHER v. HEMRICH BREWING CO. et al.

No. 25603.

Supreme Court of Washington

September 5, 1935

Department 2.

Appeal from Superior Court, Pierce County; F. G. Remann, Judge.

Action by G. J. Fisher, individually and as administrator of the estate of Myrtle Fisher, deceased, against the Hemrich Brewing Company and E. C. Bucholz. To review a judgment of nonsuit granted on motion of defendants, plaintiff appeals.

Affirmed.

Burkey & Burkey, of Tacoma, for appellant.

Ellis &amp Evans, of Tacoma, and Eggerman & Rosling and R. L. Johnson all of Seattle, for respondents.

HOLCOMB Justice.

This appeal is brought to review a nonsuit granted by the court below, on motion of respondents at the conclusion of the evidence on behalf of appellant, in an action for damages for the death of appellant's decedent and for damages to his own person and property. The action was the result of a collision between a Pontiac automobile, owned and driven by appellant, and a Chevrolet truck, leased to respondent brewing company for delivery of its products which was driven at the time by respondent Bucholz.

The collision occurred in Tacoma, at the intersection of South 9th street and Ainsworth avenue, on March 21, 1934, at about 3:30 in the afternoon. South 9th street is a hill street running east and west, and the slope is to the east. Ainsworth avenue runs north and south, intersecting South 9th street at right angles and is practically level at and within the vicinity of the intersection. On the day in question appellant was driving his car, with his wife and stepdaughter, in an easterly direction on South 9th street, while at the same time the Chevrolet truck was being driven by respondent Bucholz northerly on Ainsworth avenue. The block on which Bucholz was driving is a double block, 600 feet long.

Drawing all inferences in favor of appellant, it appears, from his testimony and the evidence adduced in his behalf, that he approached the intersection at a lawful rate of speed; that upon his right as he approached Ainsworth avenue there was a house with some shrubbery and a 4-foot terrace in the yard, making a somewhat obstructed view as to the intersecting street on his right. He testified that as he approached Ainsworth avenue he was traveling at 20 miles per hour, which, of course, was well within the speed limit of 25 miles per hour, between intersections; that when he reached the house where the terrace sloped, he took his foot off of the accelerator, the view being obstructed by the bushes and shrubbery; that he cut down his speed to a mile or two less than 15 miles per hour; that he could then see about 110 feet to his right; that when he first came to within 60 or 70 feet of the intersection, he could look down the street a distance of about 70 feet and that there was nothing within his vision; that he then looked the other way, to his left; that as he entered the intersection he speeded up to about 15 miles per hour; that he had proceeded so that 2 to 3 feet of the front end of his car had passed out of the intersection when struck. He further testified that after passing the obstructions to his view he looked to his right and kept looking to the right until within 40 feet of the intersection when he looked to his left; that at this distance he could not see the entire length of the block to the right because his car was small and low, but that he could see down Ainsworth avenue approximately 200 feet; that there was nothing in his vision and that he did not see the truck until the cars came together; that his car was equipped with four-wheel brakes; and that in going at a speed of 15 miles per hour he could probably stop within 8 feet.

On cross-examination, he stated that if he had looked when he reached the curb line extended on his right, he could have seen the truck, that there was no doubt about that, and that he could have stopped within 8 feet, but that he did not look after he had looked to the right at about 40 feet away from the intersection; that there was nothing within his range of vision at this 40-foot point to cut off his view.

An eyewitness, produced by appellant, testified positively that the truck was within 60 feet of the intersection as appellant entered it and was traveling at not less than 35 miles per hour; that its great speed attracted his attention; that he was seated on the porch of a house on South 9th street below Ainsworth avenue so that appellant, coming down South 9th street, was coming toward him from the west and the truck driven by Bucholz was coming toward the witness from the south in a northerly direction; that he was looking toward the intersection and first saw the truck when it was about 60 feet from the intersection; that he had driven an automobile for a number of years, was a railroad man, and was a good judge of the speed of automobiles; that he judged the speed of the truck was 35 miles per hour; that he kept his eyes on the truck until the collision; that there was no obstruction from his location and he could see the truck approaching on Ainsworth avenue; that looking up South 9th street he also had a clear view of the intersection; and that appellant's car had passed the center of the intersection when struck. Another witness for appellant testified that about three...