Karp v. Herder, 25282.
| Decision Date | 24 April 1935 |
| Docket Number | 25282. |
| Parties | KARP v. HERDER et al. |
| Court | Washington Supreme Court |
Appeal from Superior Court, King County; Malcolm Douglas, Judge.
Action by H. F. Karp, as administrator of the estate of Isabella Karp, deceased, against P. L. Herder and others. Judgement for plaintiff, and defendants appeal.
Affirmed.
Roberts & Skeel and Frank Hunter, all of Seattle, for appellants.
George Olson and George F. Hannan, both of Seattle, for respondent.
Plaintiff's intestate was killed as the result of a collision between a car which she was driving and one driven by defendant Herder. The collision occurred on the Olympic Highway about 2 miles east of Port Angeles, at or near the point where a highway called Baker street enters the Olympic highway from the north. The Olympic Highway is an arterial highway extending east and west. Baker street is an unpaved nonarterial highway, and does not extend south of the Olympic Highway. We shall, however, refer to the juncture of the two highways as 'the intersection.' There was a stop sign on the west side of Baker street, 30 feet north of the north line of the Olympic Highway. At the northeast corner of the intersection, there was a high embankment. Because of this embankment, it was impossible for one approaching on Baker street to see any considerable distance to the east until the front of his car was within 3 or 4 feet of the pavement on the Olympic Highway.
The collision occurred at or just east of the intersection. It is defendants' contention that the collision occurred within the intersection. It is plaintiff's contention that the collision occurred east of the intersection, after Mrs. Karp had made the turn from Baker street onto the Olympic Highway and after her car was headed east and was wholly on the south side of the latter highway.
The cause was tried to a jury, which returned a verdict in favor of the plaintiff. From judgment on the verdict, defendants appeal.
The errors assigned by appellants may be discussed under three groups: (1) Denial by the court of their challenge to the sufficiency of the evidence at the close of respondent's case; denial of their motion for a directed verdict, or, in the alternative, for judgment of dismissal at the close of all the evidence; denial of their motion for judgment notwithstanding the verdict; (2) denial of their motion for new trial; and (3) error in the giving of two instructions.
I. In considering the first group of errors, it hardly seems necessary to reiterate that we are bound to view them in the aspect of the evidence most favorable to respondent. There was ample evidence to warrant the jury in finding that Herder was driving at an excessive rate of speed--60 miles per hour. As to the point of collision and position of the cars at the time of collision, there was the testimony of two witnesses who professed to see it. One, Robertson, testified on behalf of respondent; the other, Hoare, testified on behalf of appellants.
Robertson testified that he was driving east on the Olympic Highway that when he first observed Mrs. Karp's car it was about 100 yards ahead of him, also going east; that her car was wholly on the south side (her right side) of the center line of the Olympic Highway; that Herder, coming from the east, ran head-on into Mrs. Karp's car; that when he (Robertson) arrived at the place of collision, he found Mrs. Karp lying on the pavement on the south side of the Olympic Highway at a point some 15 feet east of the east line of Baker street; that she was bleeding profusely; that débris from the wrecked cars was scattered along the south side of the Olympic Highway; that Herder's car came to rest upside down off to the south of the highway at a point within the lines of Baker street if it extended south of the Olympic Highway; that the Karp car came to rest headed north--its rear wheels still on the pavement, with its front end headed into the east side of Baker street. Robertson's testimony was corroborated in several respects by other witnesses. One testified to finding blood stains on the pavement at about the point where Robertson testified he found Mrs. Karp lying. Two corroborated him as to débris and wreckage being on the south side of the Olympic Highway.
Now, if all this evidence is to be believed (and the jury did believe it), this was not an intersection collision at all. According to this evidence, Mrs. Karp had gotten out of the intersection and had become a traveler on the Olympic Highway, occupying only that portion of the highway which, under the law, she was entitled to use. While in this position, she was struck by Herder, who was on what, for him, was the wrong side of the road. Accepting this version of the collision, it seems to us clear that Herder was negligent and Mrs. Karp was not guilty of contributory negligence.
Appellants' version of the collision all tended to show that it occurred in the intersection, as Mrs. Karp was entering the Olympic Highway from Baker street. Appellants contend that the physical facts support their version. The difficulty with this contention is that there is controversy over the physical facts, namely, blood marks on the pavement, the positions of the two cars when they came to rest, and the places where wreckage from the cars was cast. While it would appear, from the photographs in evidence, that the right front end of Herder's car struck the left front end of Mrs. Karp's, and that there was blood on the pavement to the east of the intersection (thus tending to support appellants' version of the collision), we cannot say that the physical facts are such as are determinative of the questions of negligence and contributory negligence as a matter of law. Lewis v. City of Spokane, 124 Wash. 684, 215 P. 36.
II. Appellants contend that the verdict was against the weight of the evidence, and consequently their motion for new trial should have been granted. The trial court, in passing on the motion for new trial, remarked that had it been the trier of the facts it would have reached a different conclusion than did the jury. It does not follow, however, that the verdict is against the weight of the evidence, or that the trial court abused its discretion in denying the motion for new trial. Ritter v. City of Seattle, 82 Wash. 325, 144 P. 61.
As we have seen, the verdict was grounded upon substantial evidence. In such case, we cannot say the trial court abused its discretion in denying a motion for new trial, even though it might seem to us the weight of the evidence was against the verdict.
III. The court instructed the jury to the effect that it was the duty of Herder to keep his car 'under such control so that he would not run into and collide with other vehicles on the highway.' Appellants assert this instruction fixed a measure of duty on Herder with which it was impossible to comply. This argument is predicated wholly upon the theory that the collision occurred at the place and in the manner claimed by appellants. It seems to us too plain for argument that the instruction was proper upon respondent's version of the collision.
Presenting appellants' version of the collision, the court instructed the jury, among other things, that it was Mrs. Karp's duty to yield the right of way of Herder. The court then added:
Appellants contend that error was committed in giving the quoted portion of the instruction, because there was positive testimony to the effect that Mrs. Karp did not stop Before entering the Olympic Highway, and did not yield the right of way to Herder. The witness Hoare did testify to that effect.
In many jurisdictions the presumption of due care on the part of a deceased person falls and loses its force completely upon the introduction of positive evidence to the contrary. Language may be found in many of our own cases from which it might be inferred that such is the rule in this jurisdiction, as, for example, in Reinhart v. Oregon-Washington R. & N. Co., 174 Wash. 320, 24 P.2d 615, 616, where it is said: 'The presumption of due care may be overcome by the direct testimony of disinterested witnesses, but it is not overcome by the testimony of interested witnesses or from inferences that may be drawn from circumstantial facts.'
The rule contended for by appellants, however, does not prevail in all jurisdictions where contributory negligence is an affirmative defense, and the burden of proving it is on the defendant. McGhee v. White (C. C. A.) 66 F. 502, 504; Northern Pacific R. Co. v. Spike (C. C. A.) 121 F. 44, 47. In the latter case, decided by the Eighth Circuit Court of Appeals, it was said:
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