Johnson v. Ohman

• Decision Date: 25 September 1941
• Docket Number: 28083.
• Citation: 10 Wn.2d 466,117 P.2d 217
• Parties: JOHNSON v. OHMAN et ux.
• Court: Washington Supreme Court

117 P.2d 217

10 Wn.2d 466

JOHNSON v. OHMAN et ux.

No. 28083.

Supreme Court of Washington, En Banc.

September 25, 1941

Action by O. S. Johnson against Dan Ohman and Elizabeth Ohman, his wife, to recover for damages to the plaintiff's automobile, wherein the defendants cross-complained for damages to their automobile. From a judgment denying recovery to either of the parties, the plaintiff appeals.

Judgment affirmed.

Appeal from Superior Court, Kitsap County; H. G Sutton, judge.

Ralph E. Purves, of Bremerton, for appellant.

Marion Garland, of Bremerton, for respondents.

DRIVER Justice.

This action was brought by the plaintiff to recover for damage to his automobile, resulting from a collision with an automobile of the defendants, who cross-complained for damage to their own car. The court, after a trial without a jury, found that the collision had been proximately caused by the negligence of both parties; and entered judgment denying recovery to either of them. The plaintiff appealed.

The wife was driving respondents' automobile. As her husband was not with her, and there will be no occasion to mention him, for convenience, we shall hereinafter refer to Mrs Ohman as if she were the only respondent.

The accident occurred October 23, 1938, at eight-thirty o'clock in the morning, on a county road surfaced with 'black top' pavement, the paved portion being approximately sixteen feet wide. There were dirt shoulders on the sides of the pavement, but the record does not show their width. Appellant's car, driven by his son, was proceeding in a northerly direction around a curve to the right when it met respondent's automobile traveling in the opposite direction, and the two vehicles collided. The points of contact were the left-rear portion of appellant's car and the left-front wheel and the side of the left-front fender of respondent's car. The front of the respondent's car was not damaged. The trial court, in its memorandum opinion sagely observed: 'The evidence in this case is conflicting, of course, as it is in all automobile damage cases. One side says one thing and the other side says the other. It is not necessarily intentional, but that is just human nature.'

The conflicting testimony as to the speed of appellant's automobile, and the manner in which the collision occurred, will be discussed in connection with the questions raised by the assignments of error.

There are but two assignments: (1) That the lower court erred in finding that appellant's car was traveling at an excessive speed; and (2) that the court erred in concluding that such excessive speed constituted contributory negligence. They will be discussed in the order stated.

1. The appellant's driver and his companion each testified that they had been going thirty-five miles an hour, but had slowed down to about twenty-five miles just Before the collision. On the other hand, the respondent testified that appellant's driver approached her at forty-five miles an hour, and that he came along 'just like a shot.' Respondent and three of her witnesses also testified that the impact overturned appellant's automobile, and its momentum carried it north along the highway, on a slightly rising grade, for a hundred feet or more Before it came to rest upon its side. By the following comment in its memorandum opinion, the trial court indicated that it was profoundly impressed by this circumstance: 'Then you can't escape the fact that their [appellant's] car went at least a hundred feet after the accident, after the collision, and did not roll on its wheels,--you lose control and a car will roll indefinitely, and while the grade is slight, the evidence definitely establishes that there is a slight upgrade, and that car turned over on its side, wasn't rolling on its wheels, and was going against the natural obstruction of the highway and the wind and everything and went over a hundred feet, which is definitely conclusive in my mind that that car must have been going too fast around that curve.'

It is well settled that, in a case of this kind, the impact and violence of a collision may be taken into consideration in determining the rate of speed. Osborn v. Seattle, 142 Wash. 25, 31, 252 P. 164; Day v. Polley, 147 Wash. 419, 423, 266 P. 169; Harry v. Pratt, 155 Wash. 552, 556, 285 P. 440; Hunter v. Lincoln Stages, Inc., 161 Wash. 634, 297 P. 179; Copeland v. North Coast Transportation Co., 169 Wash. 84, 89, 13 P.2d 65; Gaskill v. Amadon, 179 Wash. 375, 380, 38 P.2d 229.

Appellant argues that the speed limit was fifty miles an hour; that there was no competent evidence that appellant's car was exceeding the limit except the testimony of one of respondent's witnesses (a Mr. Erickson) that, when it passed him two miles north of the scene of the accident, it was going sixty miles an hour; and that such testimony was too remote to be worthy of consideration.

Fifty miles an hour is the maximum lawful speed limit, and is permissible only under the most favorable circumstances. The statute which fixes the limit (Rem.Rev.Stat., Vol. 7A, § 6360-64) qualifies it by providing that a vehicle must be operated 'in a careful and prudent manner and at a rate of speed no greater than is reasonable and proper under the conditions existing at the point of operation, * * *.' In the instant case, the collision took place on a pronounced curve on a winding, rather narrow road. Respondent testified that the curve could not be negotiated safely at a speed greater than thirty miles an hour. Appellant's driver testified that, as he approached it, he reduced his speed from thirty-five miles to twenty-five miles an hour, because 'I knew there was a bad road in there and I slowed down.' Clearly, a speed of fifty miles an hour would not be reasonable or proper under such conditions. As to the testimony of Mr. Erickson (it came in without objection at the trial), the following comment in the memorandum opinion indicates that the court did not give it much probative value: 'They passed Mr. Erickson back some two miles, which isn't any definite proof at all that they were continuing that speed, but they passed him at a high rate of speed; sixty miles an hour or thereabouts, on that road, is too fast.' (Italics ours.)

Disregarding entirely the testimony of the witness Erickson, we think the record amply justifies the trial court's finding that the operator of appellant's automobile 'was driving same at a high and dangerous rate of speed * * *.'

2. With reference to his second assignment of error, appellant maintains that, in any event, speed should not be held a bar to his recovery, because it had no proximate, causal connection with the collision. He relies upon Burlie v. Stephens, 113 Wash. 182, 193 P. 684; Piland v. Yakima Motor Coach Co., 162 Wash. 456, 298 P. 419; Thomson v. Schirber, 164 Wash. 177, 2 P.2d 664; Clark v. King, 178 Wash. 421, 34 P.2d 1105; and Hutteball v. Montgomery, 187 Wash. 516, 60 P.2d 679.

A similar contention was advanced in Stangle v. Smith, Wash., 117 P.2d 207, a recent decision of this court. We held that, under the circumstances of that case, the driver of a car, which was on the proper side of the highway, could have avoided a collision had he been proceeding more slowly, and his excessive speed was, therefore, a proximately contributing factor. In the opinion, we said:

'In the former case [Burlie v. Stephens, supra], a boy on roller skates and, in the latter [Clark v. King, supra], an automobile turned into the path of an oncoming car so suddenly, in such close proximity, and under such circumstances that the driver, who had no reason to anticipate the danger, could not escape a collision. In each instance, we held

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