Hamilton v. Cadwell

Decision Date05 August 1938
Docket Number26962.
Citation81 P.2d 815,195 Wash. 683
PartiesHAMILTON v. CADWELL et al.
CourtWashington Supreme Court

Department 2.

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

Action by Levi Mitchell against George C. Cadwell and others for injuries sustained in an automobile collision, wherein R. D Hamilton, special administrator of the estate of Levi Mitchell, deceased, was substituted for plaintiff who died while appeal was pending. Verdict and judgment for plaintiff and defendants appeal.

Reversed and remanded for new trial.

Roberts & Skeel and W. R. McKelvy, all of Seattle, for appellants.

Ronald Moore, of Kelso, for respondent.

MILLARD, Justice.

On April 25, 1934, a Ford coupé operated by Levi Mitchell traveling in a northerly direction on Fourth Avenue (a north and south highway) collided at the intersection of that avenue and Ash Street (an east and west arterial highway) in the city of Kelso with defendants' truck which was proceeding westward on Ash Street. In the middle of Fourth Avenue, twenty-eight feet south of the south curb line of Ash Street, is a stop sign. Mitchell stopped at this sign and looked to the right and to the left. He then proceeded and entered on the arterial highway without stopping at the intersection of the arterial highway with Fourth Avenue. His automobile, when all or a portion of it had passed the north curb line of Ash Street, was struck by defendants' vehicle. On appeal ( Mitchell v. Cadwell, et al., 188 Wash. 257, 62 P.2d 41) of the defendants the judgment, in the action brought by Mitchell to recover for personal injuries sustained by him as a result of the collision, was reversed and the cause was remanded for a new trial on the ground of prejudicial error in giving a certain instruction and in joining as a party defendant the company which had issued to defendants a liability insurance policy.

The second trial of the cause, in which only the owners and operators of the truck were made parties defendant, resulted in a verdict in favor of the plaintiff. From the judgment entered on the verdict, motions for judgment notwithstanding the verdict and for a new trial having been overruled, the defendants appealed.

Levi Mitchell died subsequent to the appeal and R. D. Hamilton special administrator of the deceased, was substituted as respondent.

The assignment based on the denial of the challenges to the sufficiency of the evidence and of the motions for judgment notwithstanding the verdict are without merit. As stated in the opinion on the former appeal, these motions were to be considered only in the light of the respondent's evidence; and, so considered, there was enough evidence to carry the case to the jury. The evidence on the second trial was not materially different from the evidence adduced on the first trial.

Counsel for respondent argues that on this appeal we may not consider assignments of error that were also made on the first appeal even if we did not review such assignments on the first appeal. It is insisted, ( Morehouse v. Everett, 141 Wash. 399, 252 P. 157, 58 A.L.R. 1482, cited as sustaining authority) that all questions determined on the previous appeal, or which, being involved might have been determined on that appeal had they been presented, should not be considered on this appeal, as those questions are settled as the 'law of the case.'

The 'law of the case' is a rule which should be restricted to such questions as have been presented and decided on the former appeal, and those necessarily involved in such decision.

The only questions considered on the first appeal were the sufficiency of the evidence and the errors assigned on the giving of a certain instruction and the joining of an insurance company as a party defendant. We stated in reversing the judgment on the first appeal that we did not consider any questions other than those mentioned in the opinion. It follows, in view of our specific statement, that the appellants would be entitled, having again assigned errors similar to or the same as those committed on the first trial and which we did not consider, to a review on a subsequent appeal of such assignments of error.

Over objection of appellants, Mitchell was permitted to testify in answer to a question whether, if the truck had continued on its course and had not turned to the right, his automobile would have been struck, 'It could not have been struck if they had not come off of the intersection.'

Counsel for appellants contend that the court erred in admitting that testimony as it called for a conclusion. Shelley v. Norman, 114 Wash. 381, 195 P. 243, does not sustain the argument of respondent to the effect that the evidence to which appellants object calls for a mere matter of calculation, therefore, it was not objectionable. The question was improper; however, the conclusion of the witness that, if the truck had continued on its course and had not veered to the right the automobile of the deceased could not have been struck, was a conclusion which carries but little weight.

Counsel for appellant next complain of the following instruction, the particularly objectionable portion of which we have italicized.

'You are further instructed that it is the law of the State of Washington that a driver shall not exceed fifteen miles per hour in traversing an intersection of highways where the driver's view is obstructed. A driver's view shall be deemed to be obstructed when at any time during the last one hundred feet of his approach to such intersection, he does not have a clear and uninterrupted view of such intersection and of the traffic on all the highways entering such intersection for a distance of three hundred feet from said intersection; and if you find...

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9 cases
  • Hauswirth v. Pom-Arleau
    • United States
    • Washington Supreme Court
    • November 24, 1941
    ... ... or stop and look, from a position where he can see ... approaching traffic from either direction. Hamilton v ... Cadwell, 195 Wash. 683, 81 P.2d 815; Delsman v ... Bertotti, 200 Wash. 380, 93 P.2d 371; Hefner v ... Pattee, 1 ... ...
  • Langer v. Auto Interurban Co.
    • United States
    • Washington Supreme Court
    • July 10, 1947
    ... ... or stop and look, from a position where he can see ... approaching traffic from either direction. Hamilton v ... Cadwell, 195 Wash. 683, 81 P.2d 815; Delsman v ... Bertotti, 200 Wash. 380, 93 P.2d 371; Hefner v ... Pattee, 1 ... ...
  • State v. Bauers
    • United States
    • Washington Supreme Court
    • August 29, 1946
    ... ... these errors on this appeal. Gray v. Washington Water ... Power Co., 30 Wash. 154, 70 P. 255; Hamilton v ... Cadwell, 195 Wash. 683, 81 P.2d 815; Buob v ... Feenaughty Machinery Co., 4 Wash.2d 276, 103 P.2d 325; ... Junkin v ... ...
  • People v. McIntosh
    • United States
    • Court of Appeal of Michigan — District of US
    • April 28, 1970
    ...exact spot at which vehicles are required to stop. See 7 Am.Jur.2d, Automobiles and Highway Traffic, § 196, p. 747; Hamilton v. Cadwell (1938), 195 Wash. 683, 81 P.2d 815; People v. Ubertini (1943), 182 Misc. 634, 51 N.Y.S.2d 62; Carpenter v. Snipes (1950), 203 Okl. 534, 223 P.2d 761; Clift......
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