Hawkins v. Palmer, 30118.
|29 Wn.2d 570,188 P.2d 121
|30 December 1947
|HAWKINS v. PALMER et al.
|United States State Supreme Court of Washington
Action by John J. Hawkins against Gertrude C. Palmer, doing business as Hawley Cab Company and others, for injuries sustained in automobile accident. From judgment of dismissal, the plaintiff appeals.
Appeal from Superior Court, Whatcom County; Ralph O. Olson, Judge.
Pemberton & Orloff, of Bellingham, for appellant.
John D MacGillivray, of Spokane, for respondents.
The appellant, driving south from Ferndale to Bellingham at 3:30 or 4:00 a. m. on September 23, 1945, discovered that a Mr and Mrs. Thorpe had been injured when the motorcycle they were riding collided with an automobile. They were lying on the west side of the road, she entirely off the pavement and he with his feet on the paved portion of the highway and his body lying at right angles to the pavement and across the shoulder which flanked the pavement at that point.
Discovering that their injuries were critical and that an ambulance and medical aid were needed immediately, he drove to Bellingham and requested the police to send out an ambulance. He then returned to see if he could be of any further assistance, and found several cars parked on the east side of the road. He drove past two cars which were parked, partially on the shoulder of the road, just opposite the place where Mr. and Mrs. Thorpe were lying. (It should be noted that the pavement was twenty feet in width, with a four-foot-ten-inch shoulder on each side.) Appellant testified that he parked ahead of the two cars referred to and behind two or three others.
In the meantime, the ambulance belonging to respondent Gertrude C Palmer (and covered by insurance issued by respondent United Pacific Insurance Company) had arrived and had stopped with the rear door opposite Mr. Thorpe's feet. (This was not a regular ambulance with a door at the back, but was a seven-passenger Chrysler sedan in which a stretcher could be placed.) The stretcher had been placed parallel to and north of Mr. Thorpe, and, when the appellant returned after parking his car, the ambulance driver and a man who had come with him were on the south side of Mr. Thorpe, endeavoring to lift him onto the stretcher. While the appellant was endeavoring to assist them, a car driven by Floyd N. Peterson came through from the north, sideswiped the ambulance and hit the stretcher, Mr. Thorpe and the men standing beside him, and seriously injured the appellant. (Both Mr. and Mrs. Thorpe died as a result of the injuries they had sustained.)
We are not here concerned with Mr. Peterson's negligence, if any, because he is not a party to this action. Appellant's theory is that respondent Palmer's employees were negligent (1) in stopping the ambulance partially on the west (its left) side of the highway; (2) in not leaving '* * * at least one half of the width of such roadway * * * clear and unobstructed for the free passage of other vehicles * * *.' Rem.Rev.Stat., Vol. 7A, § 6360-110; (3) in not putting out flares or giving adequate warning that the ambulance was stopped on the highway; and (4) in leaving the headlights of the ambulance on high beam, thus blinding Mr. Peterson as he approached from the north.
The applicability of the statutory provisions relied on by appellant as applied to an ambulance on an emergency call are not discussed in the briefs. Rem.Rev.Stat., Vol. 7A, § 6360-5, states that they shall not apply '(a) To any authorized emergency vehicle property equipped as required by law and actually responding to an emergency call or in immediate pursuit of an actual or suspected violator of the law, within the purpose for which such emergency vehicle has been authorized: Provided, That the provisions of this section shall not relieve the operator of an authorized emergency vehicle of the duty to operate with due regard for the safety of all persons using the public highway nor shall it protect the operator of any such emergency vehicle from the consequence of a reckless disregard for the safety of others: * * *.'
It may be that there was a question as to whether the ambulance involved here was an 'authorized emergency vehicle properly equipped as required by law'; or Rem.Rev.Stat., Vol. 7A, § 6360-5, may have been regarded as immaterial by reason of the grounds of the decision of the trial court. In any event, we desire it to be understood that this section of the law has been disregarded for the purposes of this decision.
Whether the ambulance was slightly over the center line of the highway and whether its lights were on high beam were disputed questions of fact. There was also conflict over whether appellant was specifically asked to assist in lifting Mr. Thorpe or volunteered in response to a request for assistance directed to all bystanders, and, also, whether he was facing north or south when hit by the Peterson car. It is conceded that the ambulance driver and his assistant did not put out any flares or attempt to give any warning of the fact that the ambulance was stopped on the roadway; but there was evidence that there were people with flashlights both north and south of the place where the ambulance was stopped, to flag down traffic, so there would have been a question of fact as to whether or not the men with the ambulance were justified in failing to take any other precautions. Mr. Peterson testified that he did not see any one with a flashlight and that he was blinded by the headlights of cars facing him, but could not tell whether they were the lights of the ambulance or of cars parked along the side of the road. It is clear that, even if the ambulance was entirely on its right side of the road, there was not room for a car to pass between the end of the stretcher, which was placed north of Mr. Thorpe, and the ambulance; and, again, it was a question of fact for the jury whether the men with the ambulance were entitled to rely on the precautions taken to stop oncoming traffic, while they lifted the bodies and carried them to the ambulance. While we find it difficult to believe that a jury would have found that any act of these men was the proximate cause of the injuries sustained by the appellants, the questions of negligence and proximate cause were for the jury.
The case was taken from the jury and dismissed at the conclusion of the plaintiff's (appellant's) case because, as the trial judge aptly pointed out, if defendant (respondent)...
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