Glick v. Ropes

Decision Date23 June 1943
Docket Number28948.
Citation138 P.2d 858,18 Wn.2d 260
PartiesGLICK v. ROPES et ux.
CourtWashington Supreme Court

Department 1.

Action by Charles E. Glick against Ray Ropes and wife to recover damages sustained as a result of collision between plaintiff's truck and defendants' automobile, wherein defendants filed a cross-complaint. The jury returned a verdict finding that neither plaintiff nor defendants was entitled to recover and from a judgment of dismissal plaintiff appeals.

Affirmed.

Appeal from Superior Court, Grays Harbor County; J. M. Phillips judge.

O. M Nelson, of Montesano, for appellant.

Falknor, Emory & Howe, of Seattle, for respondents.

JEFFERS Justice.

This action was instituted in the superior court for Grays Harbor county, by Charles E. Glick, against Ray Ropes and wife, to recover damages sustained as the result of a collision between a truck driven by plaintiff Glick and a Buick car driven by defendant Ray Ropes. We quote paragraph 3 of plaintiff's complaint, as that paragraph contains the only allegations as to the claimed negligence of defendants: 'That on the evening of October 21, 1939, the plaintiff was driving his pick-up truck in an easterly direction on the Olympic highway between Montesano and Brady, Washington; that after having traveled approximately two-thirds of the distance to Brady from Montesano he decided to turn back to Montesano, and in so doing, made a left turn into a driveway on the north side of the highway; that his truck was almost completely off the paved portion of said highway; that the defendants at that time were driving their automobile in a westerly direction at an excessive and high rate of speed, to-wit: over sixty miles per hour, and causing their car to collide with the plaintiff's truck, striking it between the front and rear wheels and throwing it a distance of about 30 to 40 feet.'

Then follows a statement of the damage claimed to have been done to plaintiff's truck and the injuries sustained by plaintiff.

Defendants, by their answer, denied all allegations of negligence on their part, and as a first affirmative defense, pleaded contributory negligence on the part of plaintiff. By way of cross-complaint, defendants pleaded negligence on the part of plaintiff, as a result of which Mrs. Ropes was injured and defendants' automobile damaged.

By his reply, plaintiff denied the affirmative matter pleaded in defendants' answer and cross-complaint.

The cause came on for hearing Before the court and jury on February 2, 1942. The following verdict was returned by the jury: 'We, the jury, being duly impaneled and sworn to try the above entitled cause, do find both plaintiff and defendants equally guilty of negligence and neither plaintiff, Charles E. Glick, nor defendants, Ray Ropes and Mrs. Ray Ropes are entitled to damages.'

A motion for a new trial was made by plaintiff and denied, and thereafter, on September 4, 1942, the court entered a judgment of dismissal, from which judgment plaintiff has appealed.

Error is based upon the giving of instructions Nos. 12 and 15, and the refusal to give requested instructions Nos. 7 and 12; upon the denial of appellant's motion for new trial; and upon the entry of judgment of dismissal.

While as stated in appellant's brief, his claim of error committed is based upon the giving of two instructions and the refusal of the court to give two requested instructions, it will be necessary to set out the evidence in order to determine whether or not the trial court had a factual as well as a legal basis upon which to base the instructions given and the refusal to give others.

The accident happened on the night of October 20, 1939, on the state highway between Montesano and Brady, at a point opposite the home of Mrs. Mabel Anderson. The highway had a paved surface of 20 feet, with a gravel shoulder on each side about 12 feet in width. Connecting with the gravel shoulder was a narrow plank bridge over a culvert, leading to the north and connecting with the private driveway into Mrs. Anderson's place.

While the witnesses were not very definite as to time, it appears that the accident happened about 8:30 p. m. It was dark, and Mr. Ropes testified that while some rain had fallen, it was not raining at the time of the collision. Appellant testified it was drizzling. Both cars had their lights on. To the west of where the accident occurred, the road is level and straight for a mile and a half, and to the east at least a mile.

Appellant testified that on the night of the accident he left Montesano, driving his Dodge pick-up truck, with the intention of going to Brady. He was accompanied by Mr. Walter James. Appellant was driving east on the highway, at about 45 miles per hour, and when about half way to Brady, he determined to turn around and go back to Montesano, and began to look for a place to make the turn. When he saw the driveway into Mrs. Anderson's place he slowed down, pulled into the driveway, and stopped with the front wheels of his truck resting on the little bridge hereinBefore referred to. We quote from appellant's testimony:

'So I looked for a place to turn around when he said that to me [referring to a remark made by Mr. James], so I slowed down, I seen a place to turn around there, and I pulled in on it, and figuring I got off the highway, and I stopped. I don't know any more after that.
'Q. What did you see in front of you when you made the turn? A. I seen a car coming, the headlights. * * *
'Q. When you drove up the highway and turned left, what observations did you make? A. Well, I looked in my glass and never seen a car coming close to me; and seen headlights coming towards me.

Q. How far away? A. I couldn't tell. I figured fifteen hundred, maybe two thousand feet away, I couldn't tell, it was kind of dark. It was plenty far enough away so I would have plenty of time when I made the turn and went in there.

'Q. Do you know exactly where your car was when it was hit? A. Well, it was----

'Mr. Howe: Do you know?

'Q. Do you know exactly where it was? A. I know where I stopped Before I got hit.

'Q. Where was that? A. I had the front wheels on that little bridge there, and I completely stopped.

'Q. You were on the shoulder? A. I was on the shoulder of the road.'

While this was the direct examination of Mr. Glick, Mr. Howe, counsel for respondents, asked the witness:

'Do you know where the rear wheels were? A. I wasn't looking back of me there.

'Mr. Howe: But you don't know, do you? A. Well, the front wheels was upon the bridge. I figured I was plenty far enough away, that I was perfectly safe.'

His direct examination continued:

'Q. Do you know whether any part of your car remained on the pavement or extended over the pavement at that time? A. Well, it ought not to have been.

'Q. Do you know? A. Well, I know pretty close that I was off * * *.

'Q. You say you saw a car coming from the other direction? A. Yes, I did. * * *

'Q. And did you observe his speed when it came towards you? A. Well, I couldn't tell how fast a car was going at night, that way.'

On cross-examination, Mr. Glick testified in part as follows:

'Q. So you made up your mind when he told you that [referring to a remark by Mr. James], that you were going to turn back? A. Yes, I did.

'Q. And you slowed down there? A. I slowed down, looking for a place to turn around, when he said something to me.

'Q. You saw this driveway? A. I seen this driveway, I seen this place there.

'Q. Some little distance ahead of you? A. Yes, because the head lights shown on it, I could see it.

'Q. And you stayed on your own right-hand side of the center of the highway, didn't you? A. Yes, I stayed on my own right side until I made that turn.

'Q. When you made that turn you were just opposite the driveway, weren't you? A. I might have been a little this side of it, but I couldn't say. I know I could make the turn, all right.

'Q. You stayed on your side, and then you turned right square across, didn't you? A. I don't know whether I turned exactly square or not, but I turned across that little bridge.

'Q. It was pretty close to a right-angle turn, right across the highway, wasn't it? A. Well, it would have to be pretty close, that bridge was a whole lot narrower. * * *

'Q. You made a pretty sharp turn, didn't you? A. I had to get in there. * * *

'Q. Now, then, what signal did you give that you were going to turn? A. I had no occasion to give a signal.

'Q. You didn't give a signal? A. No, I didn't. * * *

'Q. Did you put out your hand? A. I did not. * * *

'Q. Now, where were you when you first saw Mr. Ropes' car coming, you were just making the turn, weren't you? A. I was pretty close to this bridge Before I seen him. Pretty close, and I seen him coming along in there, some place, judging--pretty good judge of distances--fifteen hundred feet from him there.

'Q. At the time you started making your turn? A. Yes. * * *

'Q. At the time you were starting to make your turn across this driveway, how far away was Ropes at that time? A. Well, I should judge he was about fifteen hundred, eighteen hundred feet away; something like that.

'Q. When you started to make the turn. How fast were you travelling when you made that turn across there? A. I wouldn't know. I wasn't going over six or seven miles an hour.'

The witness again stated he was off the paved portion of the highway, and had stopped, when struck by the Ropes car.

Mr. James, who was riding with appellant, testified in part as follows:

'Q. When was it you noticed this car coming? A. Just after we turned. I noticed it Before we turned, I seen it coming way down there, but when I looked up we just turned in there and just started to stop, slowed down almost to a stop, and I...

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