Kolbe v. Public Market Delivery & Transfer

• Decision Date: 30 June 1924
• Docket Number: 18585.
• Citation: 226 P. 1021,130 Wash. 302
• Court: Washington Supreme Court
• Parties: KOLBE et ux. v. PUBLIC MARKET DELIVERY & TRANSFER et al.

226 P. 1021

130 Wash. 302

KOLBE et ux. v. PUBLIC MARKET DELIVERY & TRANSFER et al.

No. 18585.

Supreme Court of Washington

June 30, 1924

Department 2.

Appeal from Superior Court, King County; Davidson, Judge.

Action by B. R. Kolbe and wife against the Public Market Delivery &amp Transfer and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

Van Dyke & Thomas, of Seattle, for appellants.

Tucker Hyland & Elvidge and Mary H. Alvord, all of Seattle, for respondents.

MITCHELL J.

On the afternoon of March 20, 1923, A. Donnett was engaged as driver in the operation of a Ford delivery truck in the employment of the Public Market Delivery & Transfer, a corporation, the owner of the truck, in Seattle. The place of business of the owner was situated on the north side of Pine street at its intersection with a paved alley on the east side of the place of business. The office in the building was on the alley. Across the alley and adjoining it and abutting on Pine street, there was a private parking place about 30 by 45 feet for automobiles used by the Public Market Delivery &amp Transfer, and, as stated by appellants, the parking place was 'smoothed off with a slight grade westerly toward the alley and a possible slight grade toward Pine.' Pine street slopes downward 14.6 per cent. to Pike place, the street next west from the alley. The alley is slightly downgrade from the north, and as it reaches Pine street it warps or drops down on the east side so as to conform to the grade of Pine street. Donnett drove the car down the alley from the north, stopped it opposite the office, went into the office hurriedly to pick up an order, and in about five minutes found that without a driver the truck had collided with an automobile occupied by Mr. and Mrs. Kolbe down on Pike place, causing injuries to her on account of which this suit was brought against the owner and driver of the truck. The defendants have appealed from a verdict and judgment in favor of the plaintiffs.

There is neither complaint nor evidence of any fault on the part of the respondents; nor is there by evidence of the intervention or meddling of a third party with the automobile after the driver left it in front of the office window until the collision happened.

The first assignment is that the court erred in denying appellants' motion for a judgment notwithstanding the verdict. There is no testimony other than that the truck was on and facing a downgrade at the time the driver left it to go into the office, and while the proof on behalf of the appellants was to the effect that the brakes were applied when the truck was stoppd near or on the parking strip at the office, and that the brakes were in good order on the contrary there was positive evidence that the brakes were deficient and not in good order. There is an absence of testimony to show that any one saw the car until after it was well on the way down toward Pike place.

The law applicable to a case of this kind is pretty well settled and has been fully expressed in a number of decisions by this court. In the case of Abrams v. Seattle, 60 Wash. 356, 111 P. 168, this court cited with approval from Jaggard on Torts, as follows:

'* * * When the physical facts surrounding an accident in themselves create a reasonable probability that the accident resulted from negligence, the physical facts themselves are evidential, and furnish what the law terms evidence of negligence, in conformity with the maxim, 'Res ipsa loquitur.' It would seem more accurate to say, not that negligence is presumed from the mere fact of the injury or accident, but, rather, that it may be inferred from the facts and circumstances disclosed, in the absence of evidence showing that it occurred without negligence.'

In Wodnik v. Luna Park Amusement Co., 69 Wash. 638, 125 P. 941, 42 L. R. A. (N. S.) 1070, attention was called with approval to the rule stated in 1 Shearman & Redfield, Negligence (5th Ed.) § 59, as follows:

'When a thing which cause injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant that the accident arose from a want of care.'

In the case of Oberg v. Berg, 90 Wash. 435, 156 P. 391, which was a case of a runaway car without a driver, after quoting the above-mentioned text from Shearman & Redfield on Negligence, it was said:

'These observations of the learned authors were quoted with approval by this court in Wodnik v. Luna Park Amusement Co., 69 Wash. 638, 125 P. 941, 42 L. R. A. (N. S.)

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