Johanson v. King County

• Decision Date: 13 January 1941
• Docket Number: 28048.
• Citation: Johanson v. King County, 7 Wn.2d 111, 109 P.2d 307 (Wash. 1941)
• Parties: JOHANSON v. KING COUNTY et al. RIAN v. SAME.
• Court: Washington Supreme Court

109 P.2d 307

7 Wn.2d 111

JOHANSON v. KING COUNTY et al.

RIAN v. SAME.

No. 28048.

Supreme Court of Washington

January 13, 1941

Department 2.

Actions by David E. Johanson for personal injuries, and by Carol Marion Rian, administratrix of the estate of Leif Peter Rian deceased, to recover for the death of Leif Peter Rian against King County and another. The jury returned a verdict in favor of each of the plaintiffs and against King County only. From judgments for King County notwithstanding the verdicts and dismissing the complaints, plaintiffs appeal.

Affirmed.

Appeal from Superior Court, King County; James B Kinne, judge.

Ballinger Hutson & Boldt, of Seattle, for appellants.

B. Gray Warner and F. M. Reischling, both of Seattle, for respondent.

JEFFERS Justice.

As the result of a collision between a car driven by Leif Peter Rian, now deceased, and one driven by Claire Tholstrup, on Holman road, in King county, Washington, on December 23 1938, three actions were instituted against King county and Fiorito Bros., Inc., a corporation: One by David E. Johanson, who was riding as a guest in the Rian car, for personal injuries claimed to have been received as a result of the collision; one by Carol Marion Rian, administratrix of the estate of Leif Peter Rian, deceased, to recover for the death of Leif Rian, for and on behalf of herself personally, she being the widow of the deceased, and for and on behalf of the Leif Peter Rian estate; and one by Claire Tholstrup, to recover for damages to his car and injuries to himself personally as the result of such collision.

In both the Johanson and Rian complaints, it is alleged that defendant King county was negligent in the following particulars:

'1. In failing to place a yellow traffic stripe down the center of the aforesaid highway after the same was widened and Before the same was opened to vehicular traffic.

'2. In failing to obliterate the yellow traffic stripe previously existing on said highway Before the same was opened to vehicular traffic after being widened.

'3. In failing to place warning signs, barricades, directional signs or warning lights at or near the said highway, or any other measures of any nature to warn persons or vehicular traffic using said highway that the yellow line or traffic stripe on said highway did not constitute or mark the center thereof, notwithstanding defendant King County, through its agents and employees, knew, or in the exercise of reasonable care should have known, that the failure to take such precautions created a dangerous condition and, in fact, a trap for one using said highway.

'4. In opening said highway to vehicular traffic notwithstanding the existence of the aforesaid conditions and the dangerous situation thereby created.'

In view of the fact that the jury found in favor of defendant Fiorito Bros., Inc., and no appeal was taken from the judgment subsequently entered, in so far as this defendant is concerned, no reference need be made to the allegations of negligence as to this defendant, or the answer of such defendant.

Neither will it be necessary to refer to the pleadings of plaintiff Claire Tholstrup, in view of the fact that this plaintiff did not appeal from the judgment of the trial court dismissing his action and awarding costs to defendants.

King county answered the complaints of the respective plaintiffs, denying all allegations of negligence, and alleging affirmatively that if the respective plaintiffs suffered any injury or damage, such injury or damage was not caused through any fault, neglect or negligence on the part of King county, but only through the fault, neglect and negligence of the deceased, Leif Rian, the driver of the car in which plaintiff Johanson was riding, or by the negligence of Claire Tholstrup.

The respective plaintiffs denied the affirmative allegations contained in the answer of King county.

The three actions were consolidated for the purpose of trial, and thereafter came on for hearing Before a court and jury. On December 18, 1939, the jury returned a verdict in favor of each of the plaintiffs and against King county only. On December 20, 1939, defendant King county filed a motion for judgment notwithstanding the verdict and alternative motion for new trial in each of the three cases. On February 7, 1940, counsel for plaintiff Johanson and plaintiff Carol Rian moved the court for judgment in their favor in accordance with the verdict of the jury in each case, and notwithstanding the oral decision of the court. On February 17, 1940, the court granted King county's motion for judgment notwithstanding the verdict in each of the three cases, and dismissed the complaint in each action. On the same date the court entered an order granting King county's motion for new trial in each case. The court also, on February 17th, denied the motions of plaintiffs Johanson and Rian for a new trial against Fiorito Bros., Inc., and also denied the motion of plaintiffs Johanson and Rian for judgment notwithstanding the oral decision of the court.

On March 16, 1940, separate notices of appeal were served and filed by plaintiffs Johanson and Carol Rian, from the judgment of dismissal entered on February 17th.

It was stipulated that the two actions last above mentioned be consolidated for the purpose of this appeal.

Appellants' assignments of error are based upon the following grounds:

(1) The trial court erred in granting respondent's motion for judgment notwithstanding the verdict in each and both of the cases.

(2) The trial court erred in granting respondent's motion for a new trial in each and both of the cases.

(3) The trial court erred in entering judgment in favor of respondent, and in refusing to enter judgment on the verdicts in favor of appellants in each and both of the cases.

A consideration of appellants' first assignment of error requires a discussion of the evidence, and in such discussion we have in mind the rule that, appellants having obtained jury verdicts in their favor, all conflict in the evidence must be resolved in favor of appellants, and all inferences from evidence in the light most favorable to appellants.

We shall first endeavor to describe Holman road in such a way that our subsequent reference to it will be understandable. Holman road No. 1, which is just north of the city limits of Seattle, was originally constructed between Fifteenth avenue N.W. and Greenwood avenue, to a width of twenty feet, but was so constructed that an additional strip twenty feet wide could be added, thus making a forty-foot pavement. To provide for drainage, the original twenty-foot concrete road was built five inches higher on the south edge than on the outside or north edge. Prior to the time of the accident in question, a twenty-foot strip of concrete was added to the original pavement, with a five-inch crown in the center, and sloping from the center to either side of the road.

Holman road runs in a northeasterly direction from Fifteenth avenue N.W. and West Eighty-Sixth street, for a distance of 7,114 feet, to where it joins Greenwood avenue. As Holman road was constructed and being used on the night of the accident, it consisted of four lanes, each ten feet wide, separated by dummy joints. In order that we may have these lanes more clearly in mind, we will designate as No. 1 the lane farthest to the right and north, looking southward from Greenwood avenue; the next lane to the left, No. 2; the next lane to the left, which would be the first lane on the new twenty foot pavement, No. 3; and the lane farthest to the left, No. 4. There were three dummy joints in this highway, composed of compressed felt and asphalt, one in the center of the highway, between the old and new pavement, and one in the center of the northerly, and one in the center of the southerly, half of the pavement. These joints were clearly distinguishable to traffic.

Upon Holman road, as originally constructed, there was a yellow line running down the center of the twenty-foot strip, and this line was still there at the time the new pavement was opened for traffic. There was no yellow line down the center of the pavement between the new and old pavement, and no yellow line dividing the new pavement.

About a week Before the accident, an inspector in the employ of King county had ordered the barriers removed and the new pavement opened for traffic. Clearly, because of this evidence the jury were justified in releasing Fiorito Bros., Inc., the company which constructed the new pavement, from liability herein, and no contention is made by appellants to the contrary.

The only direct testimony in this case as to how and where the accident happened was that given by plaintiff Tholstrup. While Leo Z. Zuber was riding in the car with Tholstrup at the time of the accident, he testified he knew nothing about how or where it happened. Mr. Rian, the driver of the car which collided with the Tholstrup car, was killed, and appellant Johanson, who was riding in the Rian car, was knocked unconscious and remembered nothing about the accident, and did not know what streets the Rian car traveled to get onto Holman road, or anything about it.

Tholstrup testified that he was driving southwesterly from Greenwood avenue on the old strip of pavement, to the left of the yellow line (lane 2): that while he was so proceeding at about forty to forty-five miles per hour, he had been meeting cars. Referring to the scene of the accident, the witness testified in response to questions as follows:

'A. * * * I believe there was two cars there and all of a sudden this other car loomed up from behind and I just saw the lights and that crash and that is all there was to it.

'Q. How many cars, if any, had you passed from the...