Girardi v. Union High School Dist. No. 1, Skagit County

• Decision Date: 04 August 1939
• Docket Number: 27474.
• Citation: 200 Wash. 21,93 P.2d 298
• Parties: GIRARDI et al. v. UNION HIGH SCHOOL DIST. NO. 1, SKAGIT COUNTY, et al.
• Court: Washington Supreme Court

93 P.2d 298

200 Wash. 21

GIRARDI et al. v. UNION HIGH SCHOOL DIST. NO. 1, SKAGIT COUNTY, et al.

No. 27474.

Supreme Court of Washington

August 4, 1939

Department 2.

Action for damages for injuries suffered in an automobile accident by Philip Girardi and Angelin Girardi, husband and wife, and Michael C. Laszlo against the Union High School District No 1, Skagit County, Wash., and Ralph McMains. From a judgment for the plaintiffs, the defendants appeal.

Affirmed.

Appeal from Superior Court, skagit County; Willard L. Brickey judge.

Warren J. Gilbert, of Mount Vernon, and Karr & Gregory, of Seattle for appellants.

Henderson & McBee, of Mount Vernon, for respondents.

SIMPSON Justice.

Plaintiffs brought this action to recover compensation for injuries to themselves, and, in addition, plaintiffs Girardi sought recovry for damage to their automobile, sustained in the collision with a school bus owned by defendant school district, and driven by defendant Ralph McMains, its employee.

Plaintiffs allege that the driver of defendants' but was negligent in that he drove the bus on the left side of the center of the street or highway on which it was traveling; that the driver failed to keep his vehicle under control and to watch, look, and observe where he was going; that he did not yield to plaintiffs' driver the right of way; that in making a left turn at the street intersection where the accident occurred, he failed to pass around the center of the intersection, but instead made a left turn Before reaching the center of the intersection, cut the corner, and ran into and against plaintiffs' car as it was passing through the intersection on its right side of the highway.

Defendants by answer denied the charges of negligence, and alleged that the driver of plaintiffs' car was guilty of contributory negligence in that he was driving at an excessive rate of speed; and failed to keep a proper lookout for other vehicles on the highway, to keep his car under control, and to exercise due care to avoid the collision.

The reply put in issue the allegations contained in defendants' answer.

Upon the issues thus presented, the case was tried to a jury resulting in verdicts favorable to plaintiffs. After appropriate motions for judgment notwithstanding the verdict and for a new trial were made and denied, defendants appealed.

Appellants urge errors on the part of the trial court (a) in excluding evidence concerning the speed of respondents' car; (b) in precluding the cross-examination of respondent driver relative to whether he had been drinking intoxicating liquor Before the collision; (c) in the giving of certain instructions and the refusal to give other instructions proposed by appellants; (d) in the denial of a motion for a new trial; and (e) in entering judgment on the verdicts.

The accident occurred September 10, 1937, on West Division street at or near its intersection with Wall street, just west of the city limits of Mt. Vernon. West Division street, running east and west, is paved with concrete eighteen feet in width, with additional black top paving on each side about four or five feet in width. Wall street runs north and south and is paved to a width of eighteen feet. A yellow strip is painted along the center of West Division street.

From the intersection an unobstructed view is had of West Division street to a distance of about twelve hundred feet to the west. The accident took place at approximately 9 A. M.; the day was clear; and the pavement dry.

The driver of the school bus was traveling in a westerly direction, and intended to make a left turn and go south on Wall street. Respondents were traveling in an easterly direction on West Division street.

Further evidence which the jury was justified in believing may be briefly stated as follows: As respondents arrived at a point one hundred fifty feet from the intersection they were traveling about twenty-five miles per hour, at which time the driver took his foot from the gas pedal and did not thereafter accelerate his speed. He looked ahead, saw appellants' bus approaching from the opposite direction on its right side of the highway; that no signal of an intention to turn was given by anyone in the bus and, feeling secure in having the right of way, proceeded to and across the intersection; that when respondents were across the intersection the driver of the bus turned immediately to his left in front of respondents' car, and came into collision with the left front portion of the car. Respondents were seriously injured by the collision. The injuries to Mr. and Mrs. Girardi were permanent in nature.

The map of the intersection introduced in evidence, and upon which the position of the cars after the collision was indicated, shows they came together at a point eighteen or twenty feet east of the east line of the pavement on Wall street. The front wheels of the bus were on respondents' side of the paved portion of the highway and the left front end was within a short distance of the south side of the pavement on West Division street. In short, the bus in an oblique position occupied all but about two feet of the pavement on respondents' side of the road. The relative position of the cars just after the accident is not in serious dispute.

The evidence relating to speed, and the giving of a signal indicating that the bus was going to turn to the left, was in conflict, but such evidence was entirely for the determination of the jury, and it was justified in finding that appellants' driver was guilty of negligence.

Appellants first complain of the court's refusal to allow a seventeen year old witness, who was riding in the bus, to testify concerning the speed of respondents' car as it approached the intersection. Upon direct examination the witness testified that he rode in cars frequently and had watched speedometers, estimated the speed of the automobiles, and could tell the jury how fast respondents' car was traveling. Appellants offered to show that the witness would testify that respondents' car was traveling sixty miles per hour. When he was asked questions touching his qualifications he stated that he had never made any tests of the speed of any cars coming toward him other than a mere guess. Objection to this testmony was sustained, though the court did allow the witness to testify that the car was coming very fast.

Our attention is called to Tecklenburg v. Everett Railway Light & Water Co., 59 Wash. 384, 109 P. 1036, 34 L.R.A.N.S., 784; Hiscock v. Phinney, 81 Wash. 117, 142 P. 461, Ann.Cas. 1916E, 1044; Bennington v. Northern Pacific R. Co., 113 Wash. 1, 192 P. 1073, and other authorities which hold that a non-expert witness may testify as to the speed of moving objects. The evidence was admissible. However, in view of the fact that the witness was allowed to express his opinion that the car was 'coming fast,' we are of the opinion that the exclusion of his testimony in regard to the precise rate of speed of respondents' car does not constitute prejudicial error and comes within the holding of this court in Ives v. Silvernail, 157 Wash. 25, 288 P. 276, 277, in which it is stated: 'While the witness might properly have been permitted to testify, even though what he said would not have been of very great...