Hughes v. Jolliffe

Decision Date11 July 1957
Docket NumberNo. 34091,34091
Citation313 P.2d 678,50 Wn.2d 554
PartiesVic HUGHES and Arlene Hughes, Appellants, v. Lee JOLLIFFE and his wife, Edna Jolliffe, Respondents.
CourtWashington Supreme Court

Vincent Abbey, Warren Chan, and Frank J. Conway, Seattle, for appellants.

Kahin, Carmody & Horswill, Seattle, for respondents.

MALLERY, Justice.

On July 17, 1953, the defendants drove to the Ankenys' home for their golden wedding anniversary. Defendant Lee Jolliffe parked his car back of another car in the Ankenys' private driveway, which sloped slightly back to the street. He did not lock his car, turn his wheels against the curb, or set his emergency hand brake, but the amended complaint alleges, and the undisputed testimony shows, that he 'put the automatic gear shift into Park.' This mechanical 'gear lock' is as effective as a brake.

Sometime later, Mrs. Ankeny parked her car behind the defendants' car. Afterwards, she went for a drive in her car and was accompanied by the defendant Lee Jolliffe.

The plaintiffs were present with their two-and-one-half-year-old son. Over an hour after defendant Lee Jolliffe had parked, and while he was away with Mrs. Ankeny, the plaintiff Mrs. Hughes and her father, Mr. Ankeny, were sitting on the steps leading to the driveway. The defendants' unattended car then coasted backwards down the slight incline and crushed the infant Hughes to death. After the accident, the gearshift lever was then found to be in 'neutral gear.' This action was brought by his parents for his wrongful death.

At the close of the plaintiffs' case, the court dismissed the action. Plaintiffs appeal.

The appellants concede a failure to produce evidence of negligence, but contend, upon appeal, that the court erred in dismissing the action because they are entitled to the benefit of the doctrine of res ipsa loquitur, which excuses them from proving negligence and puts the burden of explaining the cause of the injury in question upon the respondents.

As to the application of res ipsa loquitur in this case to the issue of what started the car in motion, we have held: (1) If a car starts in motion immediately after a defendant parks it, he is called upon to explain why it moved without his negligence. Kolbe v. Public Market Delivery & Transfer, 130 Wash. 302, 226 P. 1021; Oberg v. Berg, 90 Wash. 435, 156 P. 391. (2) But, if a car remains in position for a substantial length of time without moving, then res ipsa loquitur does not apply because of the probability of the existence of an intervening cause, or else the car would not have remained in place so long. Joseph v. Schwartz, 128 Wash. 634, 224 P. 5. This is the rule applicable to the facts in the instant case.

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9 cases
  • Gresser v. Taylor, 40362
    • United States
    • Minnesota Supreme Court
    • 5 mai 1967
    ...as likely that the vehicle was set in motion by the children who were playing on it as by any negligence of defendant. Hughes v. Jolliffe, 50 Wash.2d 554, 313 P.2d 678, is distinguishable in that there was not only a 2-hour time lapse, but it was clear that in the meantime the car had been ......
  • Cassisi v. Maytag Co.
    • United States
    • Florida District Court of Appeals
    • 11 mars 1981
    ...the evidence of the true explanation of the accident is more accessible to the defendant than to the plaintiff. See Hughes v. Jolliffe, 50 Wash.2d 554, 313 P.2d 678 (1957); Appalachian Insurance Co. v. Knutson, 358 F.2d 679 (8th Cir. 1966); Wilson v. East St. Louis & Interurban Water Co., 2......
  • Riley v. Larson
    • United States
    • Idaho Supreme Court
    • 20 octobre 1967
    ...outside force or other agency thatacted outside force or other agency that acted position. They rely on the case of Hughes v. Jolliffe, 50 Wash.2d 554, 313 P.2d 678 (1957), in which a car was parked on a slight incline for over an hour with the automatic gearshift locked in park before it b......
  • Nationwide Mut. Fire Ins. v. General Motors Corp.
    • United States
    • U.S. District Court — Northern District of Ohio
    • 13 février 2006
    ...the evidence of the true explanation of the accident is more accessible to the defendant than to the plaintiff. See Hughes v. Jolliffe, 50 Wash.2d 554, 313 P.2d 678 (1957); Appalachian Insurance Co. v. Knutson, 358 F.2d 679 (8th Cir.1966); Wilson v. East St. Louis & Interurban Water Co., 29......
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