Gaches v. Daw, 23454.

• Decision Date: 09 May 1932
• Docket Number: 23454.
• Citation: 168 Wash. 162,10 P.2d 1111
• Parties: GACHES et ux. v. DAW et ux.
• Court: Washington Supreme Court

10 P.2d 1111

168 Wash. 162

GACHES et ux. v. DAW et ux.

No. 23454.

Supreme Court of Washington

May 9, 1932

Department 2.

Appeal from Superior Court, King County; John A. Frater, Judge.

Action by Charles E. Gaches and wife against Harry Daw and wife, in which defendants filed a cross-complaint. From a judgment for plaintiffs, defendants appeal.

Affirmed.

HOLCOMB J., dissenting.

L. B Schwellenbach, of Seattle, for appellants.

R. V Welts, of Mount Vernon, and Poe, Falknor, Falknor & Emory and Preston, Thorgrimson & Turner, all of Seattle, for respondents.

MAIN J.

Charles E. Gaches and wife brought this action to recover damages for personal injuries which Mrs. Gaches sustained in an automobile accident. The defendants, Harry Daw and wife, denied liability and presented a cross-complaint in which they sought damages for personal injuries sustained by Mrs. Daw arising out of the same accident. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiffs in the sum of $2,500. The defendants moved for judgment notwithstanding the verdict, and, in the alternative, for a new trial, both of which motions were overruled and judgment was entered upon the verdict, from which they appeal.

The facts are these: The accident happened on the Pacific Highway about eleven miles south of Mount Vernon at about 7 o'clock p. m., October 22, 1929. Near the point where the accident happened, the highway forms a 'Y.' What is referred to as the old road curves to the right, and goes by the way of the town of Stanwood. The new road or cut-off curves to the left, and is the shorter way to Everett and Seattle. The highway was paved, and on the west side thereof there was a dirt shoulder about four feet wide. Off the dirt shoulder there was a slight depression or shallow ditch. Around the curve to the right there was a guard rail. As the Y was approached, there was a road sign on the right-hand side.

The appellants were proceeding south, intending to go to Seattle, in an automobile owned by them but driven at the time by Joseph W. Daw, a brother of Harry Daw. When they approached the Y, they proceeded around the curve to the right for a short distance, and then, being uncertain whether that was the direct road to Seattle, stopped. The automobile was backed around the curve, and, as the occupants of the Daw car testified, the wheels thereof were placed upon the dirt shoulder. Harry Daw who, with Mrs. Daw, was riding in the rear seat of the automobile, got out and went back to the road sign. An automobile, driven by Mrs. Gaches and of which she was the only occupant, came from the north, and she, too, was intending to go Seattle. She testified that the Daw car had been stopped in the middle of the pavement, and that, as she approached, she could see the red tail-light and slowed down to a speed of about twenty miles per hour. When she was at a point near the road sign, she testified that Mr. Daw suddenly stepped out from the side of the road, ten or twelve feet in front of the car, with his hat in his hand, and waved at her. She at first thought it was a holdup, and was very much frightened. She swerved the car to the left to avoid hitting Mr. Daw, and immediately collided with the Daw car, which was about twenty-five feet distant. The left front of the car that Mrs. Gaches was driving struck the right rear of the Daw car, with the result that both Mrs. Gaches and Mrs. Daw were seriously injured.

As to the manner in which the accident happened, Mrs. Gaches testified: 'I was going about forty miles an hour. As I approached the cut-off I saw a red light a little bit to the left of the center of the pavement. I was driving on the right-hand side of the highway. There was space between the light and my side of the highway to drive through. I slowed up to see what it was, whether it was construction work or an automobile or what it was. I slowed up to about twenty-five miles an hour. Maybe a little bit less. I was just about ready to toot my horn because I realized it was a car; I could see the red light and headlights ahead of it; I was just ready to toot my horn, or had tooted it when a man jumped in front of me, about ten or twelve meet in front of my car on the paving in front of me. He had his hat in his hand and waved it and scared me; I thought at first it was a hold-up. I swerved my car to the left to avoid--get away from him. I would have hit him if I had not swerved. I watched him to be sure that I got away from him. My car was slanting naturally to get away from him. I was watching him and when I finally put my eyes on the highway there was the car, it was too close to do anything. My left, the driver's side of my car, hit the right side of their car. This man scared me to death.'

As to the manner of the happening of the accident, Harry Daw testified: 'I went to get out, but I could not get out because there was a fence there, and he backed up some more so he cleared the fence. Then I got out of the car, the right rear wheel was off the paving and the front right wheel was on the paving. I told him to back up some more and he did. I looked and we were off the paving, so he stopped and I walked sideways to the rear of the car and then walked back to the sign. As I was walking back to the sign, I saw a car coming; it seemed to be coming very fast and as I got right to the sign post it was right close to me. I stepped back off the road. As it passed me, I would say it was two feet, not any more, from the right-hand side of the road. I waved my hand and tried to call her attention to pull over to the left for fear she would hit my car. My light was burning, I could see ahead. I no more than waved twice and the thing was over, I saw my car go over across the road; I saw her spin around the center of the road, and I went over and jumped on the running board of my car. She was going at a terrific rate of speed. I should estimate between forty and fity miles an hour. The speed of the car did not decrease at any time up until the time she came up there, at the time I waved my hand. I was on the gravel. My hat was in my hand, I did not stand out in front of the car.'

Whether the accident happened in the manner in which Mrs. Gaches testified or in the manner in which Mr. Daw testified, in which he was corroborated by his wife and brother, presented purely a question of fact, and the jury, by its verdict, sustained the facts as testified to by Mrs. Gaches.

The first question is whether Mrs. Gaches, at the time of the accident, was guilty of contributory negligence as a matter of law. If the facts are as testified to by her, she was placed suddenly in a position of peril by the act of Mr. Daw, and was very much frightened, as well she might be. Under such circumstances, the jury had a right to find that she acted in a way the emergency seemed to require and was not guilty of contributory negligence as a matter of law. This court has never been overnice about scrutinizing the action of one who has been placed in peril by the negligence or wrongful act of another, and it has been uniformly held that, if the minds of reasonable persons may differ as to whether the act was that of an ordinarily prudent person, the question was one for the jury. Sheffield v. Union Oil Co., 82 Wash. 386, 144 P. 529; Allen v. Schultz, 107 Wash. 393, 181 P. 916, 6 A. L. R. 676; Watkins v. Interstate Coach Co., 145 Wash. 221, 259 P. 393. Mrs. Gaches was not guilty of contributory negligence as a matter of law, under the circumstances, in failing to stop her automobile Before it struck the Daw car. Neither was she guilty of contributory negligence as a matter of law in attempting to pass the Daw car on the right-hand side, as she testified it was her intention as she approached, if, in fact, that car was parked in the center of the highway. Grein v. Gordon, 280 Pa. 576, 124 A. 737, 34 A. L. R. 1511; 42 C.J. 1016; 1 Blashfield, Cyclopedia of...