Lakoduk v. Cruger, 33260

Decision Date19 April 1956
Docket NumberNo. 33260,33260
Citation48 Wn.2d 642,296 P.2d 690
PartiesMolly LAKODUK, as Administratrix of the Estate of Peter J. Lakoduk, Deceased, Respondent, v. Melvin G. CRUGER and Robert Beck; The City of Spokane, a municipal corporation, Appellants. Molly LAKODUK, Respondent, v. Melvin G. CRUGER and Robert Beck; The City of Spokane, a municipal corporation, Appellants. Evelyn M. MILLER, as Administratrix of the Estate of Robert D. Miller, Deceased, Respondent, v. Melvin G. CRUGER and Robert Beck; The City of Spokane, a municipal corporation, Appellants.
CourtWashington Supreme Court

Del Cary Smith, Randall, Danskin & Lundin, Paul J. Allison, Spokane, for appellant.

Tonkoff, Holst & Hopp, Yakima, Kimball & Clark, Waterville, for respondent.

DONWORTH, Justice.

The three cases which are the subject of this appeal arose out of the same automobile collision which occurred at approximately 2:00 p. m. on February 2, 1953, at the intersection of Division street and Wellesley avenue in Spokane. The vehicles involved were a Kenworth triple combination hose wagon (hereinafter referred to as the hose wagon), which was a part of the city's regular fire department equipment, and a farm truck with a pickup body. All three occupants of the farm truck were killed, and actions for wrongful death were commenced by their respective administratrices against three defendants: The city of Spokane, the driver of the hose wagon, Melvin G. Cruger, and the fire captain in charge thereof, Robert Beck.

The city of Spokane was dismissed from the action prior to the trial, after its demurrers to the complaints had been sustained. We affirmed that dismissal upon the ground that, in the maintenance and operation of the fire department, the city was engaged in the performance of a governmental function, and that the purpose for which the emergency run was made was a part of the duties of the fire department. Lakoduk v. Cruger, Wash., 287 P.2d 338.

Molly Lakoduk, as administratrix, brought two actions: One on account of the death of her husband, and for the destruction of their farm truck, and the other on account of the death of her thirteen-year old daughter. Evelyn Miller, as administratrix, brought an action against the same defendants on account of the death of her husband, Robert Miller. The three actions were consolidated for trial, which was had before the court and a jury, and resulted in a verdict in favor of the two defendants in each of the three cases. In each case the plaintiff's motion for a new trial was granted. The defendants have appealed from the orders granting a new trial, and in each case assign as error only the reasons of a new trial. However, the reasons stated by the trial court in its order granting a new trial raise many complex and difficult questions of law.

For convenience, we shall refer to the two administratrices as respondents, and the two firemen as appellants.

The facts relating to this tragic accident, which for the most part are not disputed, may be stated as follows:

Wellesley avenue is a two-lane highway which runs east and west. Division street is a four-lane arterial highway which runs north and south and intersects Wellesley avenue at right angles. Fire station No. 13 is located on Wellesley about eleven blocks west of Division. The destination of the fire apparatus was a house on east Broad avenue, which was located some five blocks east of Division street and one block north of Wellesley avenue.

The trip was made in response to a telehpone call received at the headquarters of the fire department to the effect that a two-year old boy had locked himself in the bathroom and that his grandmother needed assistance in rescuring him.

The call was relayed to fire station No. 13. Appellant Beck ordered his crew to 'man' the hose wagon and proceed under emergency conditions. Appellant Cruger was driving the apparatus which proceeded east from the station on Wellesley at speeds ranging from 30 to 40 miles per hour. Appellant Beck, who was in command of the operation, was sitting on the right, beside the driver. He had the red flashing lights operating and was continuously sounding the siren as required of an emergency vehicle.

As the hose wagon crossed Atlantic street, which is on block west of Division, the traffic light at Division street changed from green to amber and thence red for traffic traveling east and west; green for traffic north and south bound on Division. Appellants both testified that Cruger allowed the hose wagon to coast to Division street from Atlantic, thereby reducing its speed to 25 or 30 miles per hour. Some witnesses estimated its speed at from 30 to 40 miles per hour as it approached the intersection.

Appellants testified that they observed some six cars facing the intersection which were stopped and appeared to be holding their positions. Appellant Cruger then accelerated his motor at a point approximately 30 feet west of the west pedestrian crosswalk at Division and entered the intersection. At the same time, the farm truck driven by Peter J. Lakoduk, which was northbound on Division street, having the green light in its favor, entered the intersection from the south, the manner and speed at which the latter entered the intersection being a matter of dispute. It is undisputed that the collision took place in the southeast quadrant of the intersection. The fire apparatus struck the farm truck at the cab broadside. As stated above, the resulting collision killed all three occupants of the farm truck: Peter J. Lakoduk, his minor daughter, Patricia Lakoduk, and the other passenger, Robert Miller.

Fourteen distinterested witnesses were called and without exception each testified that he had heard the siren as the fire apparatus was approaching the intersection. The condition of the roadway was wet, since a slow drizzling rain was falling. Witnesses who were seated in six of the eight automobiles which were stopped at the intersection testified that they had their windows up, windshield wipers operating, and some had their radios operating; nevertheless, each witness heard the siren either as he was approaching the intersection or had stopped there. Some of these witnesses had heard it when two or three blocks away. Other witnesses, who were at the time inside buisness establishments located within one block of the intersection, testified that they heard the siren while the hose wagon was a block or more away. All witnesses who were in a position to see testified that the red lights on the hose wagon were continuously flashing.

Just prior to the collision the Lakoduk truck was traveling north in the outside lane of traffic on the east side of Division, and came up beside three cars which were stopped at the intersection in the inside lane. At least two witnesses, Jack MacDonald and Earl Riese, both of whom were following behind the farm truck, testified that it had stopped before entering the intersection. Mr. MacDonald stated that he definitely saw the red stop lights function on the farm truck as it slowed and stopped. His was the second car which had stopped in the inside lane on Division facing north. Mr. Riese was traveling north in the outside lane and had stopped directly behind the farm truck. Other witnesses were not certain as to whether or not the farm truck had stopped or merely 'hesitated,' and still others estimated that it was moving at from 5 to 15 miles per hour as it approached the intersection.

The block southwest of the Wellesley-Division intersection, bounded by Division on the east and Wellesley on the north, is level with the streets. The only building in the block at the time of the accident was a Union service station, which was located some 60 feet southwest of the intersection.

Appellants both testified that, as they crossed Atlantic street traveling east on Wellesley, they had seen the farm truck proceeding north on Division when it was approximately two-thirds of a block south of the intersection, but that, as they approached the west crosswalk on Division all traffic was 'holding its position.' Appellants Cruger and Beck both stated that the first knowledge they had that the farm truck was not holding its position was the instant that it proceeded out into the intersection in front of the hose wagon when the latter was about 25 feet from the point of impact. Appellant Cruger stated that he 'went for the brakes,' but that the vehicles collided as he did so, throwing his foot off the brake pedal.

A Spokane police officer, who investigated the accident, testified that neither vehicle left visible skid marks as the result of braking. He further testified that, from measurements taken, and from a side skid mark made by one of the tires of the farm truck, it was his opinion that the point of impact was 7 feet north of the south curb line of Wellesley and 1 1/2 feet west of the east curb line of Division. There was testimony that the front of the farm truck had reached the center line of Wellesley.

The wooden pickup body was torn from the farm truck and came to rest 96 feet east of the point of clooision. The dual wheels, also torn from the pickup truck, came to rest some distance further than the wooden body. The two trucks became locked together as a result of the collision, and continued some 159 feet in a northeasterly direction, coming to rest in Albertson's parking lot, which is located on the northeast corner of the intersection.

Respondents alleged in their amended complaints that appellants were operating a fire engine in the scope of their authority; that appellants, Beck and Cruger, were negligent in the following particulars:

'1. In entering an intersection when the traffic control light showed red;

'2. In entering said intersection of the city street and State highway within the incorporated limits of the City of Spokane at a speed in excess of 25 miles per hour;

'3. In entering said intersection when...

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