Keller v. Breneman

• Decision Date: 29 July 1929
• Docket Number: 21581.
• Citation: 153 Wash. 208,279 P. 588
• Parties: KELLER v. BRENEMAN.
• Court: Washington Supreme Court

279 P. 588

153 Wash. 208

KELLER v. BRENEMAN.

No. 21581.

Supreme Court of Washington

July 29, 1929

Department 1.

Appeal from Superior Court, Cowlitz County; H. E. McKenney, Judge.

Action by J. B. Keller against C. G. Breneman. From a judgment dismissing the action, plaintiff appeals. Affirmed.

W. W Banks, of Portland, Or., and Miller, Wilkinson & Miller, of Vancouver, for appellant.

Shank Belt & Fairbrook, of Seattle, and Atwell & Moore, of Kelso for respondent.

FULLERTON J.

The appellant, Keller, sued the respondent, Breneman, to recover for personal injuries. The action was tried before the court sitting with a jury, and a substantial verdict was returned in favor of the appellant. A motion for judgment notwithstanding the verdict was interposed by the respondent, which motion the court granted and entered a judgment dismissing the action.

The appellant formerly resided at Ryderwood, in this state. He moved from that place to the city of Portland, in the state of Oregon, and, desiring to move his household furniture from Ryderwood to Portland, procured a motortruck at Portland for that purpose, and employed one Ryherd to drive it. The parties proceeded from Portland to Ryderwood, loaded the furniture onto the truck, and started on their return journey, traveling south on the Pacific Highway. At a place some distance north of La Center, Wash., the highway passes over a somewhat steep grade, with a sharp turn to the right. As the truck started to ascend the grade, it stalled, having exhausted its supply of gasoline. The appellant got out of the truck, and seeing a car approaching towards the rear of the truck, walked down towards it to stop it for the purpose of obtaining a sufficient supply of gasoline to take them on to La Center. Failing in his purpose, he turned and walked along the highway in the other direction, traveling near its center. As he reached a place some 20 feet beyond the front of the truck, the respondent came over the top of the grade in an automobile, driving it on what was to the respondent the right-hand side of the highway. As the respondent approached somewhat near the appellant, he swerved his car toward the left, struck the appellant and knocked him down, and instantly thereafter collided with the truck.

There is a dispute in the evidence as to the conditions surrounding the parties and as to their situations at the time of the accident. It is conceded that it was dark at the time, and that a drizzling rain was falling. The appellant and his driver also testified that, when the truck ceased to go forward, it immediately began backing down the grade, and was stopped after it had gone about 6 feet; that it was then somewhat angling across the roadway, with its back left side corner protruding some 2 or 3 feet over the center of the highway. They further testified that the lights of the truck shone along the highway after it stopped, and that the appellant, as he walked forward, was at all times within the glow of the lights. The appellant also testified that the respondent was traveling in excess of the speed limit as he came over the top of the grade; that is, at a speed in excess of 40 miles per hour.

The testimony of the respondent, on the other hand, was that he was traveling at a speed not to exceed 30 miles per hour when he came over the top of the grade; that, because of the curve in the highway, the lights of his car did not light up the road in front of him, and that he guided it by a spotlight which was so placed as to light up the outer edge of the paving; that he did not see the truck until it came within the glow of his spotlight, and that it appeared to block the way in his front; that it was then too late to stop his car, although he made an effort so to do, and turned to the left in an endeavor to pass between the truck and his left side of the highway. He further testified that the lights of the truck did not light up the highway to its front, but shone on the bank of the highway to its right, and were not visible to him more than as a dim glow when he entered upon the curve. He testified also that he did not see the appellant until after the accident.

It is contended that there is no showing of negligence on the part of the respondent. But with this view of the record we cannot agree. The conclusion might follow were we to take the view of the situation his own evidence indicated it to be, but there was another and contrary view which indicated negligence, and it was for the jury to say which of the discordant views was to be taken as true.

The...