Hines v. Foster

• Decision Date: 04 January 1932
• Docket Number: 23404.
• Citation: 6 P.2d 597,166 Wash. 165
• Court: Washington Supreme Court
• Parties: HINES et ux. v. FOSTER et al. READ v. SAME.

6 P.2d 597

166 Wash. 165

HINES et ux. v. FOSTER et al.

READ v. SAME.

No. 23404.

Supreme Court of Washington

January 4, 1932

Department 1.

Appeal from Superior Court, King County; Otis W. Brinker, Judge.

Action by Harold R. Hines and wife against W. L. Foster and wife and Lloyd Foster and wife, in which W. L. Foster and wife filed a cross-complaint and Lloyd Foster and wife filed a cross-complaint, and action by F. Marion Read against W. L Foster and wife and Lloyd Foster and wife, in which W. L Foster and wife filed a cross-complaint and Lloyd Foster and wife filed a cross-complaint; the actions being consolidated. Judgments for plaintiffs in both actions, and defendants appeal.

Affirmed.

Preston Thorgrimson & Turner and Padden & Moriarty, all of Seattle, for appellants.

Stratton & Kane, Elmer W. Leader, and L. B. Schwellenbach, all of Seattle, for respondents.

PARKER J.

These two actions were commenced on the same day in the superior court for King county. They each involved damage claims arising out of the same collision between two automobiles at a highway intersection in that county. They were, by consent of all the parties, consolidated for trial in that court. We shall hereafter refer to the automobile in which the plaintiffs were riding as the Hines car, and the automobile in which the defendants were riding as the Foster car.

The plaintiffs Hines and wife seek in their action recovery of damages for personal injuries suffered by Mrs. Hines and damages for injury to their clothing, claimed as the result of the negligent driving by the defendant Lloyd Foster of a car belonging to his father and mother, the defendants W. L. and Bertha Foster, in which they and his wife, the defendant Alice Foster, were riding with him; the car then being driven by him for the benefit of both families. The defendants Lloyd Foster and wife responded to the complaint in the Hines action, denying negligence as therein charged against them, and, by cross-complaint, alleged negligence in the driving of the Hines car, resulting in personal injury to Mrs. Lloyd Foster, for which they seek recovery against Hines and wife. The defendants W. L. Foster and wife responded to the complaint in the Hines action, denying negligence as therein charged against them, and, by cross-complaint, alleged negligence in the driving of the Hines car, resulting in personal injuries to both of them and damage to their automobile, for which they seek recovery against Hines and wife.

The plaintiff, Mrs. Read, seeks in her action recovery of damages for personal injuries suffered by her, and damages for injuries to her automobile, claimed as the result of the negligent driving of the Foster car, substantially as alleged in the Hines action. The defendants Lloyd Foster and wife responded to the complaint in the Read action by denials and cross-complaint, seeking damages from Mrs. Read in substance the same as in the Hines action. The defendants W. L. Foster and wife responded to the complaint in the Read action by denials and cross-complaint, seeking damages from Mrs. Read in substance the same as in the Hines action.

The actions, being consolidated, proceeded to trial together in the superior court sitting with a jury, which trial resulted in verdict and judgment in the Hines action awarding to Hines and wife recovery of damages against the defendants, Fosters, in the sum of $750, and verdict and judgment in the Read action awarding to Mrs. Read recovery of damages against the defendants, Fosters, in the sum of $875. The defendants have appealed from both of these judgments to this court. Both appeals are Before us upon one record and one set of briefs.

At the time in question, the north and south arterial highway between Sumner and Seattle, near the western edge of the city of Kent, was interested at right angles by the east and west highway between Des Moines and Kent, which is not an arterial highway. At the east and west edges of the intersection there are plain stop signs, and also at a short distance east and west from the intersection there are plain signs warning drivers approaching the intersection from those directions that they are approaching an arterial highway. The Hines car was being driven north along the arterial highway by Harold Hines; his wife, and also Mrs. Read, the owner of the car, riding with him. The Foster car was being driven east along the other highway by Lloyd Foster; his wife, and also his father and mother, the owners of the car, riding with him. Both highways have paved roadways twenty feet wide. The cars, being so driven, came into collision, at about eleven o'clock p. m., in the southeast quarter of the pavement intersection, and by the impact were thrown northeasterly, coming to rest off the pavement. Mrs. Hines was personally injured, and the clothing of Mr. and Mrs. Hines considerably damaged. Mrs.

Read was personally injured, and her car was damaged. Mrs. Lloyd Foster was personally injured. Mr. and Mrs. W. L. Foster were personally injured, and their car was damaged. The evidence is conflicting touching the alleged negligence of the drivers of the respective cars. However, the jury could well believe from the evidence that the Foster car did not stop in obedience to the arterial highway warning and stop signs, and that it was being driven at an excessive and dangerous rate of speed, without yielding the right of way to the Hines car up to the moment of the collision, and that such negligence on the part of the driver of the Foster car was the sole proximate cause of the accident; though the driver of the Hines car may have been technically negligent in slightly exceeding the statutory speed limit over the intersection.

It is first contended in behalf of the defendants that the trial court erred to their prejudice in permitting Mrs. Cummings to testify as to what she heard Mrs. Hines say soon after the accident. Mrs. Hines had been seriously injured, and was, for a short time after the accident, not only suffering severe physical pain, but was in a somewhat hysterical condition. About half an hour after the accident, Mrs. Hines, then reviving and overhearing a report of the accident being made in her presence to an officer by one of the Fosters, exclaimed: 'What were you driving so fast for, we were driving nice and slow.' This is the expression Mrs. Cummings testified that Mrs. Hines then made. The argument is that this expression of Mrs. Hines was not properly admitted as a part of the res gestae. It seems to us, in view of the short period elapsing following the accident up to the making of this statement by Mrs. Hines, her physical and mental condition during that period, the fact that she was an actual participant in the accident, being seriously injured thereby, and her apparently spontaneous making of this statement, requires us to hold that the trial judge did not abuse his discretion in permitting this statement of Mrs. Hines to thus go to the jury. The following of our decisions, we think, well support this conclusion: Dixon v. Northern Pac. R. Co., 37 Wash. 310, 79 P. 943, 68 L. R. A. 895, 107 Am. St. Rep. 810, 2 Ann. Cas. 620; Walters v. Spokane International R. Co., 58 Wash. 293, 108 P. 593, 42 L. R. A. (N. S.) 917; Britton v. Washington Water Power Co., 59 Wash. 440, 110 P. 20, 33 L. R. A. (N. S.) 109, 140 Am. St. Rep. 858; State v. Goodwin, 119 Wash. 135, 204 P. 769; Lucchesi v. Reynolds, 125 Wash. 352, 216 P. 12. Counsel for the defendants cite and rely upon our decision in Field v. North Coast Transportation Co., 2 P. (2d) 672. We think that decision is not controlling here. In that case, the question was as to whether the expression of a bystander's opinion that the driver was careless was a res gestae fact admissible in evidence; the expression not in any manner stating what the driver did or failed to do pointing to his being careless. The expression of Mrs. Hines, here in question, clearly meant that the speed of the Foster car was fast, and that the speed of the Hines car was slow.

It is next contended in behalf of the defendants that the trial court erred to their prejudice in permitting Mrs. Hines to testify as to the speed of the Foster car immediately preceding and at the time of the accident; the argument being that she did not have sufficient opportunity to observe the speed of the Foster car during the short space of time she observed it, to testify as to its speed. It is true that she had but a very short space of time to judge of the speed of the Foster car, and it may be that her testimony, wherein she said, 'I should judge...