Frothinger v. Serier, 35646

• Decision Date: 10 March 1961
• Docket Number: No. 35646,35646
• Court: Washington Supreme Court
• Parties: Aline FROTHINGER, as Guardian of Claudia Snodderly, a minor, Respondent, v. Kenneth E. SERIER, as Administrator of the Estate of Harry Van Winkle, Deceased, Appellant.

Page 780

57 Wn.2d 780

360 P.2d 140

Aline FROTHINGER, as Guardian of Claudia Snodderly, a minor Respondent, v. Kenneth E. SERIER, as Administrator of the Estate of Harry Van Winkle, Deceased, Appellant.

No. 35646.

Supreme Court of Washington, Department 1.

March 10, 1961.

Leavy & Taber, Pasco, for appellant.

Loney, Westland & Koontz, Kennewick, for respondent.

HILL, Judge.

This is an unusual case in that there were no eyewitnesses to an intersection collision. It is, nonetheless, a purely factual appeal.

The car (hereinafter called the Davis car) in which Claudia Snodderly, a minor (in whose behalf this action was brought), was a passenger, was traveling south on an arterial highway. There was a collision about 11:30 p. m., at an intersection of an east-west-nonarterial road, with a car (hereinafter called the Van Winkle car) driven by Harry Van Winkle. The point of impact was in the southbound lane of the arterial and in the eastbound lane of the nonarterial; the right front of the Davis car and the left front of the Van Winkle car came into contack with each other. After the collision both cars traveled in a southeasterly direction across and out of the intersection. The driver of the Van Winkle car was killed, and this action was brought against the administrator of his estate by the guardian ad litem of Claudia Snodderly.

Three of the young people in the Davis car, called as witnesses, were injured in the collision. At the time of trial the fourth occupant of the car was in Okinawa; one witness knew nothing of the collision until she came to at the side of the road; the other two (the driver and Miss Snodderly who were in the front seat) suffered retrograde amnesia and had no recollection of the events immediately preceding the collision. The amnesia was specifically found to be genuine and not feigned.

The trial court, on the basis of the testimony of the occupants of the Davis car as to what they could remember relating to events prior to the collision, found that the car was traveling south on the arterial; and from all of the physical facts (including place of impact, damages sustained by the cars, skid marks after the collision, and the course of cars after the impact) found that the Van Winkle car was traveling east on the nonarterial; that Van Winkle failed to yield the right-of-way to the car on the arterial, and that this negligence was the proximate cause of the collision and the very serious injuries sustained by Miss Snodderly. Judgment was entered in her favor in the sum of $12,046.35.

The administrator appeals on the issue of liability, and neither questions the seriousness of the injuries sustained by Miss Snodderly nor the amount of damage. He challenges, however, certain findings of fact and argues that the evidence on which the trial court relied is not conclusive, but speculative and conjectural, and equally supports some other hypothesis. He urged that the right front and wheel of the Davis car and the left front and wheel of the Van Winkle car could have come into contact with each other had the Van Winkle car also been proceeding south on the arterial and, while making a 'legal left turn,' been struck by the car in which plaintiff was riding while attempting to pass.

At the trial the administrator introduced no testimony except that the lights of the Davis car (which had crashed into a house near the southeast corner of the intersection) were not on, though operable, when certain witnesses arrived at the scene after the collision. Two of these witnesses arrived about five minutes after they heard the noise caused by the impact; the third arrived later with the wrecker.

We are satisfied, from our examination of the record, that there is a greater probability that Harry Van Winkle was proceeding east on the nonarterial road and failed to yield the...