Gaskill v. Amadon

• Decision Date: 22 November 1934
• Docket Number: 25099.
• Citation: 38 P.2d 229,179 Wash. 375
• Parties: GASKILL v. AMADON et al.
• Court: Washington Supreme Court

38 P.2d 229

179 Wash. 375

GASKILL v. AMADON et al.

No. 25099.

Supreme Court of Washington, En Banc.

November 22, 1934

Appeal from Superior Court, Cowlitz County; J. E. Stone, Judge.

Action by Rose A. Gaskill, as administratrix of the estate of Harry O. Gaskill, deceased, against Archibald R. Amadon and his wife and others. From a judgment for plaintiff, named defendant and his wife appeal.

Affirmed.

John F. McCarthy, of Longview, Charles D McCarthy, of Kelso, and Robert T. Mautz, of Portland, Or for appellants.

Cecil C. Hallin, H. E. McKenney, and Edgar P. Reid, all of Kelso for respondent.

HOLCOMB Justice.

This action was brought by respondent as the administratrix of her deceased husband, Harry O. Gaskill, against the owners and drivers of two cars which had been involved in an automobile collision, causing the death of decedent.

The negligence alleged against the Barretts, as the owners of a light Ford delivery truck commonly used for the delivery of bakery products, was that they intrusted the driving of the car on the day in question to their son Donald Barrett, who was then a few days less than fourteen years of age, that the brakes were very defective, and that they had almost no lining at all, and that the boy drove in a wild and reckless manner.

The only negligence alleged against the Amadons was in driving at a greatly excessive rate of speed across an intersection on which the view was obstructed on the side from which the Barrett car approached.

The jury found against both parties defendant, upon which, after motions for judgment non obstante veredicto or for a new trial had been made by both parties defendant and denied, the judgment became final as to the Barretts, since they did not appeal.

The Amadons having appealed, the chief question to determine as to them is whether or not there was any evidence to show excessive speed on the part of the driver of the car, the husband, who was alone in the car. We are not further concerned with the liability of the Barretts for negligence or as to the contributory negligence of respondent's decedent as to them.

We shall discuss the errors assigned by appellants somewhat out of the order in which they were argued as being a more logical way to dispose of them.

Appellants alleged contributory negligence on the part of decedent in having accepted passage in the Barrett car with an unlawful, as well as an incompetent, driver, which was an affirmative defense necessary to be proven from all the facts and circumstances in the case preponderantly in favor of the party who so alleges and relies thereon. McEachran v. Rothschild & Co., 135 Wash. 260, 237 P. 711, 241 P. 969. See, also, Brammer v. Percival, 133 Wash. 126, 233 P. 311. And, to overcome the presumption of due care on the part of one killed in an accident, there must be some preponderant evidence against it. Reinhart v. Oregon-Washington Railroad & Navigation Co., 174 Wash. 320, 24 P.2d 615.

It becomes necessary to determine whether or not there was such contributory negligence and also whether any negligence as alleged, on the part of Amadon, was shown.

The collision occurred a little Before 8 o'clock in the morning of December 10, 1932, in the intersection of Seventeenth avenue and Larch street in Longview. On that morning the weather was bright and clear, but cold; there having been a heavy frost during the night. The pavement was dry. The Barrett boy was driving the light Ford delivery truck southerly along Seventeenth avenue in front of the Monticello Hotel, and, when he approached the intersection on Seventeenth avenue and Larch street, which intersects Seventeenth at right angles, he looked to the right, but said that he could see nothing because decedent was sitting forward with his head and shoulders close to the windshield and his face turned toward the driver of the truck. There was also evidence that the windshield of the Ford truck was so coated with frost and ice as to render it impossible to see through it. When the Barrett truck had reached a point just about on a line with the southerly curb line of Larch street, if extended, and was almost across the intersection, the collision occurred. Amadon was driving a De Soto sedan eastward on Larch street. The Barrett boy testified that he did not see the Amadon car until just an instant Before he struck it, and had no time to even put his foot on the brake Before the collision occurred; that he just barely saw the Amadon car as a dark object that shot in front of him. Amadon did not offer himself as a witness in the case, but his answer alleged that he was driving north on Larch street intending to turn to the right on Seventeenth avenue. A witness testified that Amadon told him 'he did not see a thing until he crawled out of the car,' and 'he did not say a word about looking to the left.'

It must be apparent that it is a question for the jury to determine that, had Amadon looked to the left, he must have seen the Barrett truck being driven wildly by the boy into the intersection. The lawful speed of such obstructed intersection was 15 miles per hour. The force of the impact was so great, accepting the testimony of one of the witnesses for respondent most favorable to her, as was the duty of the trial court and this court in passing upon such questions, as to make the Amadon car travel in a circle about 80 feet, so that it was driving in the same direction it had come from when it came to rest on its right side. The Barrett car proceeded 35 or 40 feet at somewhat of an angle from the direction at which it had been traveling Before it came to rest. The Barrett car struck the Amadon car at an angle of about forty-five degrees, from the rear.

It is true that the Amadon car had the right of way, as it approached the intersection first, over traffic from the left, but, when the driver of the Amadon car saw that the driver of the truck on his left did not intend to accord him the right of way, but intended to drive recklessly through the intersection, had he been exercising due care he would have stopped or slowed his car.

The rule laid down in Martin v. Hadenfeldt, 157 Wash. 563, 289 P. 533, to the effect that all rights of way are relative and the duty to avoid accidents or collisions at street intersections rests upon both drivers, regarding the negligence of Amadon, applies here.

Appellants contend that the rule laid down in Breithaupt v. Martin, 153 Wash. 192, 279 P. 568, 569, is controlling in this case. We do not so consider. In that case there was no question but that the drivers of both cars were simultaneously approaching the intersection. However, we said: 'The question of the duty of the driver of a car in appellant's situation, who, in sufficient time to protect himself, sees an automobile approaching from his left, the driver of which manifestly is not going to accord him the right of way, does not enter into the consideration of this case.'

The impact and violence of a collision may be taken into consideration in determining the rate of speed. Copeland v. North Coast Transportation Co., 169 Wash. 84, 13 P.2d 65, and cases cited.

While there was no direct evidence of the rate of speed at which appellants' car was being driven, yet the fact that it ran into the intersection and that the collision occurred therein causing such damage is some evidence from which the jury might infer excessive speed under the circumstances existing at that time and place. Hunter v. Lincoln States, Inc., 161 Wash. 634, 297 P. 179.

Amadon was not called as a witness, which gives rise to the inference that, if he had been called and testified truthfully, his contention would not have been aided thereby. Glasgow v. Nicholls, 124 Wash. 281, 214 P. 165, 35 A. L. R. 419; Bank of Chewelah v. Carter, 165 Wash 663, 5 P.2d 1029; 22...