Foley v. Taylor

• Decision Date: 06 October 1922
• Docket Number: 17144.
• Court: Washington Supreme Court
• Parties: FOLEY v. TAYLOR et al.

209 P. 698

121 Wash. 401

FOLEY v. TAYLOR et al.

No. 17144.

Supreme Court of Washington

October 6, 1922

Department 1.

Appeal from Superior Court, Snohomish County; Guy C. Alsten, Judge.

Action by Mary N. Foley against E. R. Taylor and another, doing business as the Independent Truck Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Roberts & Skeel and N. A. Pearson, all of Seattle, for appellants.

Cooley Horan & Mulvihill, of Everett, for respondent.

MITCHELL J.

This action was brought to recover for personal injuries alleged to have been caused by the negligence of the driver of a truck belonging to the defendants. In all essential particulars the case is similar to that of Oliver et al v. Taylor et al. (Wash.) 205 P. 746. This plaintiff was injured at the same time and by the same means that Mrs Oliver was. The jury in the present case decided for the plaintiff and awarded her damages in the sum of $3,000. From a judgment on the verdict the defendants have appealed.

Supporting the appeal it is contended that upon the facts there can be no recovery. A very satisfactory account of the manner and place at which the accident occurred may be found in the opinion in the Oliver Case, and many or nearly all of the questions now presented are similar to those presented in that case.

Upon attempting to cross a street, the driver of appellants' truck, traveling westward on the north side of the street promptly observed an automobile approaching from his right on the opposite side of the street the truck was crossing. There is evidence to show that at the time the driver of the truck first noticed the approaching automobile he was going 12 miles per hour or faster, and that at once he increased the speed of the truck and turned it somewhat to the south, or, as one witness put it, tried to run around in front of the automobile, with the result of a collision at a point south and west of the center of the intersection of the two streets, causing the truck to strike the respondent as she was stepping upon the curb at the southwest corner of the street intersection. It is insisted by the appellants upon this feature of the controversy that, as their truck was first within the intersection, it had the right of way, and that the proximate cause of injury to the respondent was primary negligence of the driver of the automobile attributable to his speed which was greater than that of the driver of the truck; but as said by this court in the Oliver Case:

'The fact that the truck was in the

...