Heg v. Mullen

• Decision Date: 08 April 1921
• Docket Number: 15972.
• Citation: 197 P. 51,115 Wash. 252
• Court: Washington Supreme Court
• Parties: HEG et al. v. MULLEN.

197 P. 51

115 Wash. 252

HEG et al. v. MULLEN.

No. 15972.

Supreme Court of Washington

April 8, 1921

Department 1.

Appeal from Superior Court, King County; Clay M. Allen, Judge.

Action by Henry T. Heg and wife and others against Dennis Mullen. From judgment for plaintiffs, defendant appeals. Judgment reversed, and case remanded for new trial.

Stanley J. Padden, of Seattle, for appellant.

Walter S. Fulton, of Seattle, for respondents.

BRIDGES J.

Suit for personal injuries. The case was tried to a jury, which returned a verdict for the plaintiffs, upon which judgment was entered. Motions for judgment notwithstanding the verdict and for new trial were denied. The defendant has appealed.

The Des Moines-Kent Highway is a gravel road running nearly east and west. On the west side of White river is what is called the River road, running northerly and southerly, and paralleling the west bank of the river. Going westerly on the Des Moines-Kent highway one first comes to a bridge over the White river, and at about 150 or 200 feet west of this bridge is where the two roads intersect. On the 27th of July, 1919 the respondents were driving their Ford automobile easterly along the Des Moines-Kent highway, intending to turn northerly on the River road. The respondent Anderson was driving and the other respondents were in the car. At the same time the defendant was driving his car westerly on the Des Moines-Kent highway. The cars collided at the intersection of the two roads. The respondents' testimony shows that when they reached the intersection of the two roads they directed their car to the right-hand side of the road, with the view of making a wide turn into the River road, to go thence northerly thereon; that just as they were making the turn they observed appellant's car coming over the bridge about 150 feet away from them, at a rate estimated by them to be 45 miles an hour; that, observing they were in some danger, the driver undertook to accelerate the speed of the car in order to avoid being run down by the appellant; that they were unable to get out of the way, and as a result, were run into by the appellant's rapidly moving car and injured. Respondents further testified that as they were making the turn in the intersection of the roads they were going at the rate of 15 to 20 miles per hour.

Appellant contends that his motion for judgment notwithstanding the verdict should have been granted, for the alleged reason that the physical facts show that the accident could not have happened in the way described by the respondents. His argument is that if, as respondents' testimony shows they had but 30 feet to go to get entirely out of the intersection of the two roads, and their car was traveling at the rate of 15 miles an hour, and appellant was 150 feet away from them and was going at the rate of 45 miles per hour, the respondents' car must, of necessity, have been out of the intersection before appellant's car could have reached that point.

This is not one of those cases where the physical facts must, of necessity, contradict the testimony and control the case. As to whether appellant's negligence was the proximate cause of the injury is dependent upon various estimates made by the respondents: First, as to their exact location in the road when they first saw appellant's car; next, as to the speed of their car and that of the appellant; and, lastly, as to the distance appellant's car was away from them when they first saw it. These speeds and distances as given by respondent were nothing but estimates, and they are not necessary to be held to exact accuracy with reference to them. It may be that respondents' car was not going as fast as they thought it was; it may be that the other car was going faster than they estimated; and it may be that when respondents first saw appellant's car it was not as far away as 150 feet. These were all questions for the jury. The physical fact cases cited by appellant are not controlling here. In the case of Mosso v. Stanton Co., 75 Wash. 220, 131 P. 941, L. R. A. 1916A, 943, in discussing this question, we said:

'The vice of this argument is in the assumption that the speed of both man and machine as testified to were indisputably established physical facts, whereas they were mere estimates. Either one or both of these estimates may have been incorrect. Mere estimates, given as such, can hardly discredit positive testimony to the point of incredibility, as a matter of law.'

See, also, Ziomko v. P. S. Elec. Co., 192 P. 1009.

What we have already said is sufficient answer to the claim of appellant that the case should have been taken from the jury because of contributory negligence.

It is next contended that the court erred in permitting Mrs Anderson, one of the respondents, to testify that just as they saw the appellant's car coming over the bridge she spoke to her husband, who was driving the car, saying, 'My, Art, that car is coming fast!' It is claimed that this testimony was self-serving and not admissible as a part of the res gestae. There has been a tendency on the part of the courts to broaden rather than restrict the res gestae rule with...