King v. Molthan

Decision Date23 April 1951
Docket NumberNo. 34925,34925
Citation54 Wn.2d 115,338 P.2d 338
CourtWashington Supreme Court
PartiesMalcolm J. KING, Appellant, v. James M. MOLTHAN and Jane Doe Molthan, his wife, Respondents.

Hullin & Ehrlichman, James B. Wilson, Seattle, for appellant.

Yothers, Luckerath & O'Dea, Seattle, for respondents.

HILL, Judge.

This is an intersection-collision case, wherein the favored driver appeals from the judgment against him. The issues are factual: (1) was the favored driver negligent ; (2) was the disfavored driver deceived by the speed of the favored driver.

Eastlake is an arterial street in the city of Seattle which, at its intersection with Roy Street, runs approximately north and south and carries four lanes of traffic--two each way.

Roy is a nonarterial, east-west street carrying two lanes of traffic where it intersects Eastlake.

At the time of the collision (8:15 a. m.), there was heavy, southbound traffic on Eastlake towards downtown Seattle. There were stop signs on Roy, but no traffic lights controlling the intersection. There was a marked crosswalk across Eastlake along the north side of the intersection.

The defendant, James M. Molthan, hereafter referred to as the disfavored driver, was traveling westward on Roy in his 1955 Nash Metropolitan, and came to a stop on the east side of Eastlake awaiting a chance to cross the intersection and continue on his westward way. As he waited, the three-way traffic light (a short block to the south), which controlled the intersection of Eastlake, Lakeview boulevard, and Mercer street, turned red for Eastlake traffic; the northbound lanes on Eastlake cleared quickly; the traffic on the inside, southbound lane backed up from Mercer street practically to the south line of the Roy street intersection. A car traveling in the inside, southbound lane stopped north of Roy street at the north line of the crosswalk; and, as it stopped, its driver waved to the disfavored driver to come on across Eastlake; the intersection being clear, he proceeded across the intersection gathering speed as he went.

The plaintiff, Malcolm J. King, hereafter called the favored driver, was driving his 1952 Lincoln southbound--in the outside or curb lane of Eastlake--approaching the Roy street intersection and following the nearest automobile in front of him by an estimated one hundred and fifty feet.

The disfavored driver's automobile--after crossing the two northbound lanes and passing in front of the row of waiting automobiles in the inside, southbound lane--was struck on the right side by the favored driver's automobile while crossing the outside, southbound lane. Damages were sustained by both automobiles, and some personal injuries were suffered by the disfavored driver.

The favored driver brought suit against the disfavored driver, alleging negligence in failure to yield the right of way (see RCW 46.60.170). The disfavored driver denied the alleged negligence, and by answer and cross-complaint alleged that the favored driver was negligent in traveling at an excessive speed and passing the stopped automobiles in the inside lane without keeping a proper lookout for possible cross traffic at the Roy street intersection.

The trial court, sitting without a jury, found that the disfavored driver has acted as a reasonably careful and prudent driver and had been deceived by the speed of the favored driver's automobile, and that the sole and proximate cause of the collision was the negligence of the favored driver. From a judgment entered against the favored driver on the disfavored driver's cross-complaint, the favored driver appeals.

The only issues on this appeal are whether the evidence clearly preponderates against the findings of fact, made by the trial court, to the effect that the favored driver was negligent and that the disfavored driver was deceived by the actions of the favored driver. Unless it does so preponderate, the findings will, of course, not be disturbed on appeal.

Finding of fact No. III said, in part,

'* * * That the defendant and cross-complainant [disfavored driver] proceeded lawfully across the interesection of Roy and Eastlake and to a point approximately in the center of said intersection where he saw the plaintiff's car from a point at which he could see and reasonably decide whether or not he could proceed across the intersection with a fair margin of safety. That Molthan [disfavored driver] had his car under control so that he could make a reasonable decision whether to stop, to veer to left or to proceed. That Molthan [disfavored driver] at that time had sufficient time to proceed across the intersection if he had not been deceived by the speed of the plaintiff [favored driver].'

Finding of fact No. IV said, in part,

'That the plaintiff [favored driver] was traveling at a speed of about thirty miles per hour as he approached the intersection; that the plaintiff [favored driver] saw the line of cars waiting at the intersection; that he proceeded to pass the line of cars on the right hand side and approached the intersection without exercising reasonable care. * * *'

Finding of fact No. V said:

'That defendant and cross-complainant [disfavored driver], as a reasonable, careful and prudent man, did everything that reasonably could have been expected to be done. That the defendant and cross-complainant [disfavored driver], as a reasonable, careful and prudent man, was justified in believing he could safely cross the the intersection had the plaintiff [favored driver] not been proceeding at an excessive rate of speed. That Mr. Molthan [disfavored driver] was capable at that critical point of making his decision to continue across and that his election was one that a reasonably careful and prudent person would have made.'

The evidence clearly preponderates against findings No. III and No. V, the latter being little more than an argumentative restatement of finding No. III.

The basic facts are not in dispute. Because of the line of waiting automobiles in the inside, southbound lane on Eastlake both parties were agreed that their vision of each other had been blocked until a second before the collision occurred.

The Nash Metropolitan was approximately ten and one-half feet long; the highest point of the body (excluding the convertible top) being thirty-eight inches from the ground; and the driver's eye level being approximately forty-two to forty-four inches from the ground; it was English-made, and substantially smaller than any standard American make of automobile at the time of the accident. The size of the Nash Metropolitan contributed to the inability of each driver to see the other; but it appears that vision would have been blocked even had both automobiles been of standard size.

The favored driver estimated himself to have been only two to three car-lengths away when he saw the disfavored driver, who testified that he saw the favored driver, within a second of the impact, at a distance of some seventy-five to one hundred feet, or perhaps a hundred and twenty feet away; and, therefore, he assumed that he had a reasonable margin of safety in which to cross and was deceived by the favored driver's excessive speed.

The disfavored driver's testimony on this point would suggest a speed of from fifty to eighty miles an hour by the favored driver, which is not consistent with any of the other circumstances of the case, or with the trial court's finding of a speed of 'about thirty miles per hour.'

The favored driver's automobile skidded only a very few feet, if any, before the impact and stopped at the...

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11 cases
  • Tobias v. Rainwater
    • United States
    • Washington Supreme Court
    • August 17, 1967
    ...by that which he does not see. Smith v. Laughlin, 51 Wash.2d 740, 321 P.2d 907 (1958); Hauswirth v. Pom-Arleau, supra; King v. Molthan, 54 Wash.2d 115, 338 P.2d 338 (1959). And, if one sees the favored vehicle only an instant before the collision, there is, again, no deception in the legal ......
  • Owens v. Kuro
    • United States
    • Washington Supreme Court
    • August 4, 1960
    ...and move directly into its path where one has not looked and observed an indication that the vehicle would stop. 4 In King v. Molthan, 154 Wash.Dec. 105, 338 P.2d 338, 343, we 'One is not deceived by that which one does not see. Smith v. Laughlin, 1958, 51 Wash.2d 740, 321 P.2d 907; Hauswir......
  • Broze v. Randall
    • United States
    • Washington Supreme Court
    • April 4, 1968
    ...obstructed view of a favored vehicle does not constitute deception. Shultes v. Halpin, 33 Wash.2d 294, 205 P.2d 1201; King v. Molthan, 54 Wash.2d 115, 338 P.2d 338. It is the duty of a disfavored driver approaching an obstructed intersection to make his observations from a point at which he......
  • Kerlik v. Jerke
    • United States
    • Washington Supreme Court
    • August 4, 1960
    ...an exception to the rules applicable to disfavored drivers. They could not have been deceived by what they did not see. King v. Molthan, 154 Wash.Dec. 105, 338 P.2d 338. Appellants contend that a genuine issue of fact was raised respecting respondent's negligence. However, there was no evid......
  • Request a trial to view additional results

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