Gibson v. Spokane United Rys.

• Decision Date: 22 November 1938
• Docket Number: 27186.
• Citation: 197 Wash. 58,84 P.2d 349
• Parties: GIBSON et al. v. SPOKANE UNITED RYS.
• Court: Washington Supreme Court

84 P.2d 349

197 Wash. 58

GIBSON et al. v. SPOKANE UNITED RYS.

No. 27186.

Supreme Court of Washington

November 22, 1938

Department 2.

Action by Frank Gibson and others against Spokane United Railways, a corporation, for injuries sustained in an intersectional collision between an automobile of the plaintiff and a bus owned and operated by the defendants.From a judgment for the plaintiffs, the defendant appeals.

Affirmed.

Appeal from Superior Court, Spokane County; Fred H. Witt, judge.

Post Russell, Davis & Paine, of Spokane, for appellant.

Joseph J. Lavin, of Spokane, for respondents.

MILLARD Justice.

This action was brought to recover for property damage and for personal injuries sustained by Frank Gibson and wife and their minor niece in a collision of their automobile with a bus, owned and operated by the defendant, at the intersection of Stone street and Joseph avenue in Spokane.Trial of the cause to a jury resulted in a verdict in favor of the plaintiffs.From the judgment entered, motion for judgment notwithstanding the verdict having been overruled, the defendant appealed.

The verdict of negligence against the appellant is unchallenged.The sole contention of counsel for appellant is that the evidence adduced precluded any right of the respondents to recover, therefore the motion for judgment notwithstanding the verdict should have been granted.

Such a motion we have uniformly held, can not be granted unless the court can say, as a matter of law, that there is neither evidence nor reasonable inference from the evidence to justify the verdict.

All competent evidence in the record which is favorable to the respondentswe must regard as true and must give them the benefit of every favorable inference which may reasonably be drawn from such evidence.Where the minds of reasonable man may differ, the question should be submitted to the jury.If when so considered, we find there is substantial evidence to sustain the verdict the judgment must be affirmed.Hart v. Hogan,173 Wash. 598, 24 P.2d 99;Boyd v Cole,189 Wash. 81, 63 P.2d 931;Vercruysse v. Cascade Laundry Co.,193 Wash. 184, 74 P.2d 920;Perren v. Press, Wash.,81 P.2d 867.

The evidence on behalf of respondents is summarized as follows:

Frank Gibson testified that he was operating a Ford sedan north on Stone street, which is forty feet wide from cross-walk to cross-walk, in Spokane, July 23, 1937, about seven o'clock in the evening, at which time the sun was shining.Mr. Gibson's wife sat on the right side of the front seat with her husband.Their minor niece was in the rear seat of the automobile.Stone street intersects, at right angles, Joseph avenue, an east and west highway which is forth feet wide.Neither road is an arterial highway and both are unpaved but graveled.

Respondents' automobile was approaching the intersection at the rate of fifteen to eighteen miles an hour.When approximately one hundred and fifteen feet south of the intersection, Mr. Gibson reduced the speed of his automobile to permit an automobile two hundred feet distand approaching from the west to continue easterly on Joseph avenue.Just prior to the arrival of respondents' automobile at the intersection, an automobile traveling north on Stone street passed on the left side of respondents' automobile, turned to the right in front of respondents' automobile and proceeded east on Joseph avenue.Those two automobiles traveling east on Joseph avenue left to their rear a large cloud of dust.Both cars were almost out of sight when respondents arrived at the intersection, when Mr. Gibson again looked to the east and to the west.

Mr. Gibson first looked to the east when his automobile was sixty feet south of the intersection from which place a house at the southeast corner of the intersection did not obstruct his view to the east.From the point where he made his first observation Gibson had an unobstructed view of from one hundred and fifty to one hundred and seventy-five feet east on Joseph avenue, within which distance the dust raised by the two automobiles traveling east on Joseph avenue had settled.Within the range of his visibility Gibson could not see any vehicular traffic approaching from the east.Just as his automobile entered the intersection, Gibson again looked to the east.At that point he had an unobstructed view to the east on Joseph avenue for a distance of one hundred and fifty to one hundred and seventy-five feet within which range the dust had cleared.In the absence of dust, his range of vision would have been four hundred to five hundred feet.He did not see any vehicles approaching the intersection from the east.Respondents' automobile then proceeded across the intersection at the rate of fifteen to eighteen miles an hour, a legal rate of speed.When about ten feet south of the north cross-walk and about six feet west of the east cross-walk Gibson looked to the right and saw appellant's bus, which was about six inches from the north curb of Joseph avenue, about twelve to thirty feet east of the east cross-walk and proceeding west at the rate of thirty-five to forth miles an hour.When respondents' automobile was on the north cross-walk and practically clear of the intersection, appellant's bus swerved to the right and struck respondents' automobile immediately ahead of the rear right wheel, forcing the automobile northwesterly over and across the parking strip on to the west side of Stone street, a distance of forty feet.

Mr. Gibson's testimony that the collision took place practically on the north crosswalk was corroborated by one of appellant's witnesses.The operator of appellant's bus gave as his reason why he did not proceed straight across the intersection 'or pull to the left' that he never saw respondents' automobile until the collision because 'I was blinded by the sun.'

Mrs. Gibson's testimony is corroborative of her husband's version of the accident, with the exception that she saw the bus when their authomobile entered the intersection.She testified that, just as their automobile crossed the south cross-walk and entered the intersection, she could see the bus about one hundred feet east of the intersection on Joseph avenue, but that she did not inform her husband of that fact.Just as the respondents' automobile arrived at the north cross-walk, the right front wheel of the bus was across the drain at the northeast corner of the intersection and, just as the bus 'crossed there, he turned the wheel right toward us' and the collision resulted.She also testified that at that time the operator of the bus was looking to the north and not to the front.

Counsel for appellant argue that the cloud of dust did not prevent one of the witnesses, who was a block distant from the scene of the accident, from seeing the bus, and that the dust did not prevent Mrs. Gibson from seeing the bus Before the automobile in which she was riding entered the intersection; therefore, the bus being in plain sight some where between one hundred to one hundred and fifty feet east of the point of respondents' entrance to the intersection, Mr. Gibson's failure to observe the statutory mandate to give the right of way to a vehicle on his right 'simultaneously approaching a given point within the intersection' constituted contributory negligence which bars recovery by him or those with him in his automobile.

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