Gaylord v. Schwartz

• Decision Date: 17 March 1955
• Docket Number: No. 33067
• Citation: Gaylord v. Schwartz, 281 P.2d 247, 46 Wn.2d 315 (Wash. 1955)
• Court: Washington Supreme Court
• Parties: James GAYLORD, by Charles C. Gaylord, Guardian ad litem, Appellant, v. A. W. SCHWARTZ and Jane Doe Schwartz, his wife, Respondents.

Page 315

46 Wn.2d 315

281 P.2d 247

James GAYLORD, by Charles C. Gaylord, Guardian ad litem, Appellant, v. A. W. SCHWARTZ and Jane Doe Schwartz, his wife, Respondents.

No. 33067.

Supreme Court of Washington, Department 2.

March 17, 1955.

Wright & Wright, Seattle, for appellant.

Martin & Shorts and Lloyd W. Bever, Seattle, for respondents.

HAMLEY, Chief Justice.

James Gaylord, a thirteen-year-old boy, was riding a bicycle, northbound, on the raised wooden sidewalk along one side of a bridge. A. W. Schwartz, driving his truck along the bridge in the same direction, approached the bicycle from the rear. The two vehicles came into collision, and the boy sustained personal injuries. This action was brought upon his behalf against Schwartz and the latter's wife. The jury returned a verdict for defendants, and a judgment was entered dismissing the action. Plaintiff appeals.

The only question before us on this appeal is whether the trial court erred in giving an instruction on unavoidable accident. Appellant makes no objection as to the form of the instruction. He argues, however, that the giving of this instruction constituted prejudicial error, because there was no evidence in the case to support any finding by the jury that the accident was unavoidable.

Appellant is correct in asserting that an instruction on unavoidable accident is authorized only when the evidence shows or justifies an inference that an unavoidable accident has occurred, as that term has been defined. See Brewer v. Berner, 15 Wash.2d 644, 131 P.2d 940.

Appellant also contends that the Brewer case stands for the proposition that an unavoidable accident has not occurred unless it was caused by some agency outside of the parties themselves, such as an unexpected condition or an unpreventable mechanical failure.

We need not pass upon this question, since the instruction given, which was not excepted to as to form, does not so limit the definition of unavoidable accident. The instruction in question defines unavoidable accident only as 'an accident that occurred without having been proximately caused by negligence.'

Our examination of the record leads us to the conclusion that there was evidence showing or justifying an inference that this accident occurred without having been proximately caused by negligence. In so far as the conduct of the truck driver is concerned, there was evidence that he was operating close to the center line of the 22-foot roadway of the bridge; that the...