Heiman v. Kloizner

• Decision Date: 20 July 1926
• Docket Number: 19423.
• Citation: 247 P. 1034,139 Wash. 655
• Parties: HEIMAN v. KLOIZNER.
• Court: Washington Supreme Court

247 P. 1034

139 Wash. 655

HEIMAN v. KLOIZNER.

No. 19423.

Supreme Court of Washington, En Banc.

July 20, 1926

Appeal from Superior Court, King County; Joseph B. Lindsley, Judge.

Section by Anna Heiman against J. Kloizner. Judgment for plaintiff and defendant appeals. Reversed with direction.

Reynolds Ballinger & Hutson, of Seattle, for appellant.

Baxter Jones & Hughes, of Seattle, for respondent.

PARKER J.

The plaintiff, Mrs. Heiman, commenced this action in the superior court for King county, seeking recovery of damages for personal injuries claimed to have been suffered by her as the result of the negligent driving by the defendant, Kloizner of his automobile, while she was riding therein with him as his invited guest in the city of Seattle. A trial upon the merits before the court sitting without a jury resulted in findings and judgment awarding recovery to plaintiff in the sum of $1,300, from which the defendant has appealed to this court.

Appellant, Kloizner, is an unmarried man, about 32 years old; respondent, Mrs. Heiman, is somewhat younger. She had been a married woman up to a few years prior to the time of the accident, but was then living with her parents. For some 9 years prior to the time of the accident, appellant had been an intimate friend of respondent and her parents. During a pleasant Sunday afternoon appellant drove his automobile to the home of respondent and her mother and invited them to take a ride with him. They accepted his invitation; respondent having first asked him if he felt capable of taking good care of them, evidently having in mind that he had purchased his car only a couple of months previous and might not as yet be an experienced driver. He, however, assured them that he could properly drive the car, saying that he had been practicing. They then all got in the car, and he drove southerly on Sixteenth avenue several blocks to Jackson street, then west on Jackson street four blocks to Fourteenth or Rainier avenue, then south one block on that avenue to King street. As they neared King street, a Ford car was being driven east along King street approaching Rainier avenue. Both cars reached the intersection about the same time. Appellant, to avert striking the Ford car, swerved to the left into approximately the middle of the avenue and the intersection, but did not get over to the left a sufficient distance to avoid coming into collision with the Ford car; it being struck near the middle of the left side. This apparently caused appellant to lose control of his car, and, swerving to the right, it went in a southwesterly direction crossing the westerly sidewalk of the avenue some 30 or 40 feet south of the south line of King street, and down an embankment on a slope of some 40 feet out onto adjoining vacant private property, where one of the front wheels breaking caused the car to suddenly stop, which apparently caused the injuries to respondent for which she seeks recovery. The evidence does not make it clear as to just what position the car was in when it came to a full stop, but it at least seems certain that it was not overturned.

The alleged negligence of appellant, claimed by respondent to have caused the accident, was his excessive speed in driving his car at the time of and after turning south into the avenue from Jackson street, which, as has been noticed, was one block, apparently about 300 feet, north of King street, where the cars collided. There is no evidence of any excessive speed prior to appellant's turning his car from Jackson street into Rainier avenue. We quote from respondent's own testimony her version of appellant's negligence occurring at that time and thereafter:

'When he got to Fourteenth and Jackson he decided, I guess must have decided all of a sudden, because he made a very careless quick turn coming down that hill, and he turned so quickly that I thought he was going to hit that telegraph pole on the corner. I says, 'Please will you go slower.' I says, 'I don't mind riding slowly, as long as you are careful;' and he said, 'All right;' and he slowed up a little; and we entered Rainier Boulevard. * * * King street is the first street south of Jackson street, one block. Another car, a little Ford, came out from a side street and cut in ahead of Mr. Kloizner's car, and Mr. Kloizner hit this car; instead of stopping or slowing up he hit this car and made that car spin around like a top right in front of us. I thought at the time that Mr. Kloizner was going to stop, but instead, he headed over the curb. * * * He hit it in the center and swung it around, because our car was heavier than that little Ford and the car revolved around in front of us. * * * I thought he was going to stop, you know. We were going very slowly at the time, and I thought he would. * * *

'Q. Do you know at what speed the car was going from Jackson street on down to the time of the accident? A. Yes, sir; I believe he went--well I remember looking at the speedometer, because when he made that wild curve I thought I would keep my eye on the speedometer, and he kept going slowly, and that was shifting between 25 and 30 miles an hour, not any regular rate of speed, but just between those two.'

We are unable to see in this version of respondent as to what occurred there any certain or positive evidence of excessive speed, other than possible excessive speed while turning and immediately following the turning by appellant of his car from Jackson street into Rainier avenue. She leaves the inference, indeed comes near testifying directly, that appellant was driving his car slowly immediately prior to and when it struck the Ford car in the intersection of King street and Rainier avenue, and that his car was also moving slowly thereafter until it probably gained momentum by going down the embankment. The testimony of respondent's mother, who was riding in the back seat where any excessive speed in the sudden turn of the car from Jackson street into Rainier avenue would be more readily felt and appreciated than by one sitting in the front seat as respondent was sitting, was, as to speed, as follows:

'I was sitting in the back. I did not care where he went; I did not think about it. He was driving. I do not know how fast he drove. All I noticed was that he came there, and that he hit that other car, and then I did not know what happened.'

The testimony of respondent and her mother above quoted is substantially the whole of the evidence upon the question of the speed at which appellant was driving his automobile at any time. It seems to us that this testimony does not show excessive speed as the cause of the accident. Indeed, it almost affirmatively shows to the contrary. There is no other evidence pointing to whose negligence caused the collision; that is, all the other evidence is as suggestive of negligence on the part of the driver of the Ford car as negligence on the part of appellant. The problem, as we view it, is more one of interpretation of this somewhat indefinite and unsatisfactory testimony, rather than one of conflict of evidence. We do not think the evidence calls for the conclusion that appellant was negligent, if at all, in that degree necessary to be shown to render him liable in damages to respondent, in view of her being merely his invited guest.

Varying degrees of negligence, or varying degrees of required care if one prefers to have the proposition so stated, touching the question of liability rested upon the ground of negligence, have been repeatedly recognized by us as a practicable working principle of the law of this state. Sears v. Seattle, etc., Street Ry. Co., 6 Wash. 227, 33 P. 389, 1081; McConkey v. Oregon R. & Nav. Co., 35...