Hauswirth v. Pom-Arleau

Decision Date24 November 1941
Docket Number28327.,28326
Citation119 P.2d 674,11 Wn.2d 354
PartiesHAUSWIRTH v. POM-ARLEAU et al. (two cases).
CourtWashington Supreme Court

Actions consolidated for trial, by Joe Hauswirth, individually and as guardian ad litem for Richard Hauswirth, a minor, against Harold Pom-Arleau and others for personal injuries sustained by Richard Hauswirth in an automobile collision, and to recover for medical expenses and loss of the minor's services, wherein defendants filed a cross-complaint, and by Joe Hauswirth, as administrator of the estate of Annie Laurie Hauswirth, deceased, against Harold Pom-Arleau, and others for the death of Annie Laurie Hauswirth in the same accident. From a judgment for plaintiff in each case, defendants appeal.

Judgments reversed, with direction.

BLAKE MAIN, MILLARD, and DRIVER, JJ., dissenting.

Appeal from Superior Court, Chelan County; W. O Parr, Judge.

Caldwell, Lycette & Diamond, of Seattle, and R. D. Kendall, of Wenatchee, for appellants.

J. A. Adams, of Wenatchee, and Skeel, McKelvy, Henke, Evenson & Uhlmann, of Seattle, for respondent.


Plaintiff brought two actions to recover damages resulting from an automobile collision alleged to have been caused by the negligence of defendants. In the first action, plaintiff, individually and as guardian ad litem for his eighteen year old son Richard Hauswirth, sought recovery for personal injuries to the minor, for medical expenses, and for loss of the minor's services. Defendants in their answer denied negligence on their part, pleaded contributory negligence on the part of Richard Hauswirth, the minor son, and by way of cross-complaint sought recovery of damages caused by the collision resulting in the demolition of their automobile and in personal injuries to defendant Harold Pom-Arleau, who also was eighteen years old. Plaintiff's reply denied the affirmative allegations of the answer and cross-complaint.

In the second action, plaintiff, as administrator of the estate of Annie Laurie Hauswirth, his deceased wife, sought recovery for the injuries, suffering, and death of his wife, and for medical and funeral expenses, all resulting from the collision, and alleged to have been caused by the negligence of defendants. In their answer to the complaint in that action, defendants again denied negligence, and affirmatively pleaded the contributory negligence of Richard Hauswirth as imputable to the deceased, which in turn was put in issue by the reply.

The two actions were consolidated for trial by jury and resulted in verdicts for plaintiff on both complaints. Defendants moved, in each case, for judgment notwithstanding the verdict, or, in the alternative, for a new trial. The motions were denied in their entirety, and a judgment was entered upon each verdict. Defendants appealed, and thereafter, by stipulation of the parties, the two actions were consolidated on the appeal.

The assignments of error are predicated upon (1) the refusal of the trial court to grant appellants' motions for nonsuit; (2) the refusal of the court to grant appellants' motions for judgment notwithstanding the verdicts; (3) the admission and the exclusion of certain evidence; (4) the refusal of the trial court to declare a mistrial because of misconduct of respondent's counsel; and (5) the giving by the trial court of certain instructions, and its refusal to give certain other instructions proposed by appellants. Our decision herein is based solely upon the refusal of the trial court to grant appellants' motions for judgment notwithstanding the verdict, to the extent hereinafter stated.

The accident out of which these actions arose occurred at about three fifteen o'clock on the morning of November 1, 1939, in the intersection of Fifth street and Western avenue, about a mile west of the city of Wenatchee. Fifth street, originating in Wenatchee, extends beyond the city limits in a westerly direction and, in the vicinity of the intersection here involved, is a nonarterial street. Western avenue, which is outside and west of the city, runs in a northerly and southerly direction and is an arterial highway. The two streets cross each other approximately at right angles. In the vicinity of the place where the accident occurred, both streets were paved along the center with black-top to a width of about sixteen feet, leaving a gravelly margin of several feet on either side. Stop signs were posted at appropriate places near the intersection to warn travelers on Fifth street that Western avenue was an arterial highway. The sign at the northeast corner was located a few feet east of the east edge of Western avenue.

At the southeast corner of the intersection was an old cherry orchard. The trees were quite large and had low-hanging branches which extended very close to the margins of the two streets. Near that corner was also some heavy brush. These conditions partially obstructed the vision to the south as one approached from the east and, likewise, obstructed the vision to the east as one approached from the south. However, the two streets are almost straight in all directions from their common point of intersection and, as plainly appears from the photographic exhibits in the record, the view to the south from the east margin of Western avenue is unrestricted for a considerable distance south of the intersection.

Respondent Joe Hauswirth and his family lived on a ranch about a mile and a half west and north of the intersection here involved. Mrs. Hauswirth, who was forty-two years of age, was employed as an apple sorter at a fruit-packing plant in Wenatchee. She worked on a night shift which ended at three o'clock in the morning. The Hauswirths possessed a Chevrolet coupe, which they used as a family car.

On the night of October 31, which was Halloween, Richard Hauswirth, the eighteen year old son of respondent Joe Hauswirth, was using the car. After taking a girl friend for about an hour's ride in the early part of the evening, he drove alone to Wenatchee, arriving there at about eleven o'clock, intending to take his mother home after she had finished her work. Having several hours to wait, he went to a railroad depot just across the tracks from the packing plant and there spent his time trying to sleep. At three o'clock in the morning he called for his mother, and the two started for their home, which was about three and one-half miles west of the packing plant. They were driving west along Fifth street when the collision occurred. The weather conditions at the time were good, it being a clear, moonlit night.

Appellant Harold Pom-Arleau resided with his parents in Wenatchee. The Pom-Arleaus owned a Ford sedan which was customarily used by them as a family car. On the evening in question, Harold was using the automobile and was accompanied by George Gasper, a boy friend of about Harold's age. Starting with the car at about seven thirty o'clock, they attended a party, where they remained for approximately an hour and a half. Toward midnight, they visited a dance hall, where they met two girls and within fifteen or twenty minutes thereafter left with the girls to attend a midnight Halloween show in Wenatchee. Leaving the theater at about one thirty or two o'clock in the morning, the party of four repaired to a restaurant, where they had a spaghetti dinner. After they had finished their meal, the boys took the two girls home and then started for Gasper's home, which was about three-fourths of a mile north of the intersection of Fifth street and Western avenue. They entered Western avenue at a point about a mile south of the intersection and were proceeding north along the arterial highway when the collision occurred. The speed limit upon the arterial was fifty miles per hour, except at intersections, where it was thirty-five miles per hour.

With the exception of the occupants of the two cars, there was no eyewitness to the collision or to the movement of either vehicle immediately prior to the impact. There was testimony, however, from several persons as to the manner in which the one car or the other approached the intersection, and there was considerable testimony by persons who appeared upon the scene very shortly after the collision and who observed its results. The three boys who were involved in the accident all testified at the trial; Mrs. Hauswirth, however, had died on the day following the tragedy.

It is undisputed that the Hauswirth car, proceeding west along Fifth street, entered the intersection first; that the impact occurred in the southeast quarter of that area, at a point approximately seven or eight feet from the east and south lines, respectively, of the intersection; that the front end of the Pom-Arleau car collided with the left side of the Hauswirth car, about opposite the driver's seat; that the Hauswirth car was carried a distance of thirty-four feet from the point of impact, over to the northwest corner of the intersection, where it struck and broke a concrete retaining wall which stood thirteen inches high, then rolled over the wall and came to rest upside down, against a tree on the adjoining lawn; and that immediately following the collision, the Pom-Arleau car also proceeded over to the northwest corner of the intersection, struck and rolled along the concrete wall in a northerly direction on Western avenue, and finally stopped, lying on its side in the street, about sixty feet from the point of the impact.

Both cars were almost entirely demolished, and all four of the occupants were seriously injured. Richard Hauswirth was rendered unconscious for a period of nine days; Mrs Hauswirth, although she regained consciousness, died the next day; Harold Pom-Arleau sustained a broken leg, a bad scalp wound, and a ...

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