Hefner v. Pattee

Decision Date05 December 1939
Docket Number27658.
Citation96 P.2d 583,1 Wn.2d 607
PartiesHEFNER et ux. v. PATTEE.
CourtWashington Supreme Court

Department 2.

Action by Harry M. Hefner and wife against George Irving Pattee to recover for personal injuries and property damage, wherein defendant cross-complained for damages. Judgment for plaintiff, and defendant appeals.

Reversed with instructions.

BLAKE C.J., dissenting.

Appeal from Superior Court, King County; Hugh Todd, Judge.

Eggerman & Rosling, of Seattle, for appellant.

Fairbrook & Williams, of Seattle, for respondents.

BEALS Justice.

Plaintiffs Harry M. and Leah Hefner, husband and wife, sued defendant George Irving Pattee, seeking judgment for damages on account of injuries suffered by Mrs. Hefner as the result of an intersection collision between plaintiffs' automobile and one driven by defendant. Plaintiffs also asked for damages on account of injuries to their car.

Defendant having answered, denying negligence on his part, and pleading contributory negligence on the part of plaintiff Harry M. Hefner, who was driving plaintiffs' car, and cross-complaining for damages to his own automobile, the action was tried to a jury, which returned a verdict in plaintiffs' favor in the sum of fifteen hundred dollars. Defendant's motions for judgment in his favor notwithstanding the verdict, or in the alternative for a new trial, having been denied, judgment was entered upon the verdict, from which defendant has appealed.

Appellant assigns error upon the denial of his challenge to the sufficiency of the evidence; upon the denial of his motions for directed verdict, and for judgment in his favor notwithstanding the verdict, or in the alternative a new trial; and upon the entry of judgment in plaintiffs' favor. Error is also assigned upon the court's ruling permitting the jury to view respondents' car; upon the rejection of two exhibits offered by appellant; upon the giving of two instructions; and upon the refusal to give one instruction requested by appellant.

The collision occurred at about seven o'clock in the evening, June 26, 1938. Respondents were driving in their Chevrolet (Mr. Hefner at the wheel) west along East One Hundred Fifth street, a graveled roadway, and were approaching the intersection with Thirty-fifth avenue northeast, which is an arterial highway running north and south, the center portion being paved to the width of twenty-one feet. Approaching the intersection from the east, One Hundred Fifth street rises at a four per cent grade, while approaching the intersection from the north, Thirty-fifth avenue rises at an eight per cent grade. There is a stop sign on One Hundred Fifth street east of the intersection. A row of telephone poles stands on the shoulder on each side of the paved portion of Thirty-fifth avenue. The country is rather rough, high grass bordering and encroaching on the highways. The record contains two photographs of the intersection, one taken on One Hundred Fifth street to the east of the arterial, and the other looking south along Thirty-fifth avenue from a point to the north of the intersection. The situation was evidently one which required careful observation on the part of a driver attempting to cross the arterial highway.

Mrs. Hefner testified that she had no recollection whatever of the collision, as the result of which she suffered serious injuries. Mr. Hefner testified that as he approached the intersection with Thirty-fifth avenue, he brought his car to a stop at a point ten or twelve feet east of the paved portion of Thirty-fifth avenue. He stated that his view to his left was somewhat obstructed by shrubbery, but that he had a clear view to his right down Thirty-fifth avenue. He testified that he looked to his right, between the second and third poles, his view covering a distance of about three hundred feet, and that, seeing no traffic approaching from the north, respondent's right, along Thirty-fifth avenue, from which direction along the highway appellant's car was actually approaching the intersection, respondent looked to his left, and, seeing no approaching traffic, put his car into low gear and started to cross the paved portion of the arterial, continuing to look toward his left. When the rear of his car had reached approximately the center line of the arterial, respondent again looked to his right and saw appellant's car approaching at a high rate of speed, which respondent estimated at sixty miles an hour. He testified that he continued on, but that after his car had proceeded no further than approximately three feet, it was struck on the right rear wheel by appellant's car. The impact threw both respondents from the car, inflicting upon Mrs. Hefner serious injuries.

There was no eye-witness to the accident. One witness testified that he was driving along Thirty-fifth avenue some distance behind appellant's car, but this witness did not see the collision, and his testimony as to the speed of appellant's car is rather vague and indefinite, though indicating that the car was not proceeding at anything like sixty miles an hour.

Rem.Rev.Stat. § 6360-90, reads as follows: 'The operator of any vehicle shall stop as required by law at the entrance to any intersection with any arterial public highway, and having stopped shall look out for and give right of way to any vehicles upon such arterial highway simultaneously approaching a given point within the intersection, whether or nor such vehicle first reach and enter the intersection.'

An intersection area is defined by Rem.Rev.Stat. § 6360-1(u), as follows: '(u) 'Intersection Area.' The area embraced within the prolongation of the lateral curb lines, or, if there be no curbs, then the lateral roadway boundary lines, of two or more public highways which join one another at an angle, whether or not such highways cross one another.'

Neither of the streets above referred to is curbed, and the boundary lines of the streets, taking into consideration their full width of sixty feet, are not clearly defined.

Rem.Rev.Stat. § 6360-1(ww), defines roadway as follows: '(ww) 'Roadway.' The paved, improved or proper driving portion of a public highway designed or ordinarily used for vehicular travel.'

According to a map of the intersection and vicinity, drawn to scale, which was introduced in evidence, the stop sign stands a little less than thirty feet east of the east line of the pavement on Thirty-fifth avenue.

Mr. Hefner, who is herein referred to as respondent, testified that he stopped his car at a point ten or twelve feet east of the pavement line. He drew on the map the position of his car at the point he testified he stopped, which indicates that in his position at the wheel, he was about seventeen feet east of the pavement line. He testified that he looked to the right, and that the road was clear, 'probably down to between the second and third pole;' that a large bush obstructed his view to the left; that when he started to cross the road, he looked to his left; and that when his car was a little more than halfway across, he again looked to his right, when he saw appellant's car approaching at a terrific rate of speed, the impact occurring almost instantly.

On further examination by his counsel, respondent stated, in answer to a question as to how long it took his car to go from the position where it stopped to the point where the accident happened: 'Well, I would say around seven seconds; about that length of time.'

On cross-examination, the following occurred:

'Q. Then how far north on 35th were you able to see from the position where you came to a stop Before entering the highway? A. I looked down to between the second and third pole and there was no car coming in that range.
'Q. Was there anything to prevent you from seeing farther down the street if you had looked? A. I think a person could have seen farther. My wife was sitting on that side, but that seemed to be a perfectly safe position to cross there.
'Q. Would it have been possible to see farther than the third telephone pole? A. Yes, it would have been possible.
'Q. You could see down there probably half a mile? A. Yes, I think so.
'Q. At any rate when you in that position looked to the right, nothing intervening to obscure you vision, you didn't see any automobile approaching, did you? A. That is right.
'Q. Then you proceeded ahead and you started to cross the arterial highway? A. I looked to the left, and there was nothing coming from the left, and I started on across.
'Q. You looked to your left while you were still stopped? A. Well, there was--may I explain this?
'The Court: Yes.
'Q. Well, I think my question can be answered by yes or no. A. There was a bush on the left-hand side and you could not see as well to the left, and I was looking to the left as I started up so that I could get a better view.
'Q. So you kept your vision to the left as you started up there and as you entered the highway? A. Yes. I looked up there far enough to see, and then I looked straight ahead.
'Q. And as I understood you your rear wheels had reached the center line of the street and your front wheels were three feet off of the concrete Before you again looked to your right.
'Mr. Williams: No, he didn't testify to that.
'A. No, I didn't say that.
'Q. (By Mr. Rosling) Well, if I am incorrect in my recollection of your testimony just correct me. A. Well, the rear wheels--when I first saw Mr. Pattee the back end of my car was not quite across the yellow line.
'Q. The yellow line is down the center? A. That is right.
'Q. Then how far--let me see. That would be to the east of the yellow line. Then how far were your rear wheels when you first saw Mr. Pattee? A. Well, they were possibly a foot or
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