Langer v. Auto Interurban Co.

Decision Date10 July 1947
Docket Number30089.
Citation28 Wn.2d 343,183 P.2d 188
CourtWashington Supreme Court
PartiesLANGER v. AUTO INTERURBAN CO.

Suit by Frank J. Langer against Auto Interurban Company to recover for personal injuries and property damage sustained in a collision between plaintiff's automobile and defendant's passenger bus. Judgment for plaintiff, and defendant appeals.

Case reversed with instructions to dismiss.

MILLARD and SCHWELLENBACH, JJ., dissenting.

Appeal from Superior Court, Spokane County; Louis F. Bunge, Judge.

Witherspoon, Witherspoon & Kelly, of Spokane, for appellant.

Randall & Danskin and Arthur A. Lundin, all of Spokane, for respondent.

ABEL Justice.

Plaintiff brought suit for personal injuries suffered and property damage sustained as the result of a collision of his automobile with defendant's passenger bus. The accident occurred, August 15, 1942, on a clear, dry day, about 3:00 p m., at the intersection of Freya street and Sprague avenue in the city of Spokane.

Sprague avenue is a main arterial, heavily traveled, paved highway running in an easterly and westerly direction through Spokane. Freya street runs northerly and southerly intersecting Sprague avenue at right angles. There are stop signs on Freya street at the southeast and northwest corners of the intersection with Sprague avenue. Sprague avenue, at this point, is forty-eight feet and ten inches wide. Freya street is thirty feet and two inches wide, with a jog to the west, on the north side of Sprague avenue, of seven feet and eight inches. There was a drug store located at the southeast corner of this intersection. The stop sign at the southeast cornor of Freya street was located five feet south of the northwest corner of this drug store.

Plaintiff was driving a 1926 model T Ford coupe, which could not go more than six to seven miles an hour in low gear, and he did not dare throw it into high gear, in the middle of this intersection, in order to speed up because the car would stall. Plaintiff testified that, if he put his foot on the brake while the car was in low gear, the engine would be killed.

At the time of the accident, there were several cars parked in front of the drug store, on Sprague avenue, and there were at least two cars double-parked in front of the drug store. There were several cars stopped on Freya street, across the intersection, waiting for an opportunity to get onto or across Sprague avenue.

Just prior to the accident, plaintiff was driving north on Freya street. He stopped his automobile, with the front of the car at the stop sign on the southeast corner of the intersection. He looked to the east on Sprague avenue, and then started to cross that street. He testified that he looked to the east after he started, but that he did not see defendant's bus at any time prior to the accident. He proceeded, in low gear at from six to seven miles an hour, across the intersection. After he had gotten almost through the intersection, the rear of his car was hit by defendant's bus.

Plaintiff suffered a severe head injury, his skull was fractured, and, as testified to by his doctor, 'he was mentally confused and semi-conscious during these five days.' The doctor further testified that plaintiff suffered a concussion, that this frequently results in lack of coordination and loss of memory, and gave as his opinion that plaintiff does not remember things that occurred around the time of this accident. There was other testimony regarding plaintiff's loss of memory.

After a jury trial, plaintiff was awarded judgment in his favor, and defendant appealed.

Appellant makes eleven assignments of error. The first seven are based upon its claim that the trial court should have held, as a matter of law, that respondent was guilty of contributory negligence because it was undisputed that, if he stopped at all, it was at a place on Freya street where he could not see the approaching traffic on the arterial highway, Sprague avenue, under the existing circumstances, and it was likewise undisputed that he never saw the bus at any time and, hence, could not have been deceived. The remaining assignments of error relate to the rejection of proffered evidence to show that the speed of the bus did not exceed twenty-five miles an hour. This was based upon certain statements made by the bus driver to a police officer who arrived at the scene of the accident approximately fifteen minutes after it occurred.

Dealing with the latter question first, we find that the statements made to the police officer, fifteen minutes after the accident, were self-serving declarations and were not part of the res gestae and were properly excluded by the trial court. A similar offer of proof was made in the case of Williams v. Clayton, 189 Wash. 282, 64 P.2d 1017, 1018. We held that the trial court did not abuse its discretion in excluding the proof of the self-serving declarations, made ten minutes after the accident, and ruled that such hearsay would not be a part of the res gestate. We stated:

'In such matters there can be no definite and fixed limit of time, nor is this a question of time but rather of the right to introduce a self-serving declaration, which as such, is never permissible. Each case must depend upon its own circumstances. If the trial court has exercised a sound discretion, we cannot interfere. Walters v. Spokane International R. Co., 58 Wash. 293, 108 P. 593, 42 L.R.A.,N.S., 917. We find no evidence of an abuse of discretion and therefore no error in the ruling rejecting the testimony.'

Respondent testified that he stopped his automobile on Freya street, Before he entered the intersection, with the front of his car even with the stop sign, and it was there that he looked to the east on Sprague avenue. However, at the very maximum, he could not have seen more than one hundred eighty feet from the intersection on Sprague avenue at that time, and, in addition, there were several cars parked on Sprague avenue which would interfere with his vision. He also testified that he later looked to the east, although he does not fix the place, and that he did not, at any time, see the bus.

Respondent stresses the testimony of two witnesses, Mrs. McIntyre and Mr. Nolting. Mrs. McIntyre was standing on the southwest corner of the intersection, facing east. She testified that she saw respondent drive up and stop at the southeast corner, with the front of his car at the crossing. She later testified as follows:

'Well, we stood there talking, and he started to cross the street, and I noticed the bus coming west on Sprague.

'Q. How far was the bus away from Freya when you first noticed it? A. I can't very well tell. Those are double blocks out there. It would be a full city block like they are downtown here.

'Q. A full city block? A. Yes, 300 feet or something like that. * * *

'Q. And how far south of the intersection was Mr. Langer when you folks first saw him? A. How far south?

'Q. Yes. A. He was right there at the stop sign.

'Q. He was stopped the first time you saw him? A. He had just driven up and stopped when Mrs. White called our attention to him. * * *

'Q. And the front of the Model T Ford, where was that with relation to the arterial stop sign on the southwest corner of Freya and Sprague? A. The southwest corner? We were standing on the southwest corner.

'Q. I beg your pardon. The southeast corner. A. Where was the front of his car?

'Q. Yes. A. I imagine--I was about even with the center of his car--his--the front of his car was close to the sidewalk--the intersection, or whatever you call it.

'Q. In other words, the front of his car was a little bit ahead of the arterial stop sign? A. Well, just around there abouts; I could not just say. * * *

'Q. Well, now, as you faced there looking down Sprague, where was the bus at the time that the Langer car was at the stop sign on Freya? A. It was coming west on Sprague.

'Q. And about how far east of the intersection on Sprague was it? A. I should judge about 300 feet to a city block. * * *' The other witness, Mr. Nolting, testified that he followed the bus as it proceeded west on Sprague avenue and, at the intersection, just prior to the time that it approached Freya street, he turned to the north on Sycamore street. The distance from Freya street to Sycamore street is approximately three hundred feet. He testified that he saw respondent's car as it was entering Sprague avenue, and that, at the time the car was about a length or more into Sprague avenue, the bus was in the intersection three hundred feet away. He further testified:

'Q. About how far from the south curb line of Sprague was the rear of his car when you first saw him? A. The rear of his car, I could not say exactly. I could see the front of his car. * * *

'Q. Then, how far from the southeast--from the southwest corner of the curb line of Sprague Avenue, from the south curb of Sprague Avenue was the front of the Langer Model T Ford when you first saw it? A. Well, the rear wheel of the bus was--I would say that it was out here (witness indicating), clear to the back of the--way on the pedestrian crossing. The front of his car was out here, those two positions.'

It is significant that Mr. Nolting testified, on direct examination:

'I slowed down to make my turn, and I had turned, and about that time I looked ahead off to the side and I saw there was going to be a wreck, or it was going to be awful close.'

In determining the relative rights of vehicles at intersections, we must first consider the statute, Rem.Rev.Stat., Vol. 7A, § 6360-90, which provides as follows:

'The operator of any vehicle shall stop as required by law at the entrance to any intersection with any arterial public highway, and having stopped shall...

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