Hardman v. Younkers

• Decision Date: 25 November 1942
• Docket Number: 28789.
• Citation: 131 P.2d 177,15 Wn.2d 483
• Parties: HARDMAN v. YOUNKERS et ux.
• Court: Washington Supreme Court

131 P.2d 177

15 Wn.2d 483

HARDMAN v. YOUNKERS et ux.

No. 28789.

Supreme Court of Washington

November 25, 1942

Department 1.

Suit by Lyn Hardman against Robert A. Younkers and Jane Doe Younkers his wife, to recover for damage to plaintiff's automobile when it was struck by an automobile driven by Robert A Younkers. From an adverse judgment, the defendants appeal.

Judgment affirmed.

Appeal from Superior Court, King County; Chester A. batchelor judge.

Skeel, McKelvy, Henke, Evenson & Uhlmann and Frank Hunter, all of Seattle, for appellants.

Will G. Beardslee and George F. Ward, both of Seattle, for respondent.

STEINERT Justice.

Plaintiff brought suit to recover for property damage occasioned by an automobile collision. He alleged in his complaint that, while his Ford automobile was parked alongside the curb of a city street, defendant Robert A. Younkers negligently drove his Chevrolet automobile into the rear of the Ford, knocking it over the curb and shoving it violently against a telephone pole, as a result of which the value of the Ford car was virtually destroyed. Defendants answered denying generally the allegations of negligence and, by way of affirmative defense, pleaded that the collision was the result of an unavoidable accident. Plaintiff in his reply denied the allegations contained in the affirmative defense.

At the conclusion of plaintiff's case in chief, defendants challenged the sufficiency of the evidence to make a prima facie case of negligence against them. The challenge was overruled. At the conclusion of all the evidence, defendants challenged its sufficiency, upon the entire record, to warrant any recovery for plaintiff. The court reserved its ruling on that challenge, and the cause was then argued upon its merits and submitted for final decision, following which the court rendered its oral decision in favor of plaintiff. Defendants' motion for judgment notwithstanding the decision and their alternative motion for a new trial were both denied. The court thereafter made findings of fact from which it concluded that plaintiff was entitled to recover against defendants. Judgment was entered accordingly and defendants appealed.

The questions presented upon the appeal necessitate a statement of the evidence adduced by the respective parties. Respondent's evidence was in substance as follows:

The accident occurred on Empire Way, a short distance north of Graham street, in the city of Seattle, at about three o'clock on a September afternoon. Empire Way in that vicinity has three traffic lanes on each side. The day was clear and bright, the streets were dry, and no unusual traffic conditions were present.

Respondent's eighteen year old son and two of his high school classmates were using respondent's 1939 Ford car upon a trip in search of specimens of insects, which they were collecting for study in connection with their scholastic course in zoology. They parked the car along and parallel with the curb on the east side of Empire Way, at a point variously estimated by them at from twenty-five to forty feet, or more, south of a telephone pole. Respondent's son testified that the car was left in gear, with its brakes set. The party of three then proceeded to a slough, or swamp, located a short distance from, and below the level of, Empire Way, and began their search for insects.

About a half-hour later, while thus engaged, they heard a loud crash. Looking in the direction of Empire Way, they saw the Ford car 'bounding' forward and being forcibly shoved by the Chevrolet toward and against the telephone pole. They rushed to the scene of the accident and found the Ford car resting against the pole with all four wheels on the parking strip. The front and side of the car had been badly smashed by striking against the pole, and the back end of the car had also been seriously damaged by being run into from the rear. The impact against the telephone pole had been of such force as to loosen its crosspiece, requiring replacement by the owner thereof. The Chevrolet car had come to rest on the street, against the curb and slightly ahead of the Ford.

The right front end of the Chevrolet was in a badly battered condition. The front bumper was broken off at the center, the right front fender was demolished, the grill and right headlight were crushed, and the right front wheel assembly lay some distance back of the two cars, the exact point however being uncertain. As will appear later herein, one of the principal disputed issues of fact here involved is the question whether the wheel was knocked off in the collision, or whether it became detached Before the cars collided.

There was testimony that a telltale scratch mark or gouge, freshly made, appeared on the pavement, beginning at the point where the back end of the Ford had stood while parked, and running continuously, except for a skip of about five feet, along the street to the point where the Chevrolet came to rest. The scratch mark was made by the spindle, or stub axle, of the Chevrolet scraping along the pavement after the wheel had become detached. Its course at first ran almost paralled with the curb, then veered to the right and continued to the point where the Chevrolet stopped against the curbing. There was also testimony that upon the pavement was an area of dirt which had dropped from the Ford at the place of collision, and that the scratch mark ran through this area.

One of respondent's witnesses testified that immediately after the accident, and in reply to a question by respondent's son as to what had happened, appellant said he had 'turned to knock the ashes out of his pipe.' Another witness quoted appellant as having said: 'I don't see what happened. It must have happened when I knocked the ashes out of my pipe it happened.' The same witness testified that she saw a pipe in the possession of appellant.

The evidence adduced by appellant was of a different tenor. It may be summarized as follows: In November, 1939, Mr. Younkers, to whom we shall refer as though he were the sole appellant, bought a used 1936 Chevrolet car and at the time of the occurrence in question had driven it eighteen thousand miles. In June, 1941, a few months Before the accident, he decided to make a trip to Yellowstone Park and, in preparation therefor, had the brake drums relined at an established garage. He then submitted the car to a state inspection test, which showed that the brakes, wheel alignment, and front wheel assembly were all in good repair. The car operated perfectly on the trip and, according to appellant's testimony, continued so to perform in Seattle until a few seconds Before the collision.

There was testimony to the effect that just prior to the time of the accident, appellant was driving north along the second, or middle, lane of Empire Way at a speed of about thirty miles per hour, when suddenly his right front wheel assembly dropped off, causing his car to lurch sideways into the extreme right, or outer, lane and crash into the rear end of the parked Ford. At first, appellant, being somewhat dazed by the impact, did not realize what had taken place, but shortly thereafter a friend, who had been following him in another automobile, informed him what had caused his car to get out of control. It was testified that the spline shaft had become disengaged from the right front wheel, causing the wheel to drop off and precipitating the right knee-action assembly to the pavement; this, in turn, caused appellant's car to swerve to the right and at the same time deprived it of any braking power; in that condition, the car ran forward until it struck the Ford, causing the damages to both cars as already described. The wheel itself, however, was not damaged.

Three witnesses, one of whom was appellant's friend, the other two being strangers, testified that they were driving behind appellant and saw the wheel drop off Before the moment of collision and that it finally came to rest on the ground a short distance back of where the Ford car had originally stood. Photographs of the scene were taken while the cars were still at the places where they had come to rest. The photographs showed the greater portion of the scratch mark, which by tapemeasurement began at a point sixty-three feet back of the rear axle of the standing Chevrolet, and forty-nine feet behind the rear axle of the Ford resting at the foot of the telephone pole. The scratch mark ran almost continuously from the point where it began to the place where the Chevrolet finally stopped. Accepting the testimony of respondent's witnesses who estimated the distance from the telephone pole to the point where the Ford car was originally parked as being from thirty or forty feet, appellant contends that it is thus conclusively established that the wheel of his automobile dropped off at a point twenty-five or more feet south, or back, of the point of collision, giving rise to an unavoidable accident.

In his oral decision, rendered immediately after the close of the testimony, the trial judge made certain observations including, among others, a reference to the matter of burden of proof on the issue of 'unavoidable accident,' and one of appellant's principal assignments of error is based upon that expression by the court. However, after all post-trial motions had been denied, the trial court made formal findings of fact reciting specifically that appellant had carelessly, negligently, and unlawfully run into respondent's automobile.

The appellant first assigns error in that at the conclusion of respondent's evidence in chief the court denied the challenge to its sufficiency to make a prima facie case of negligence against appellant. Ordinarily, the mere fact that an automobile accident has occurred...