Lloyd v. Calhoun

• Citation: 78 Wash. 438,139 P. 231
• Court: United States State Supreme Court of Washington
• Decision Date: 09 March 1914
• Parties: LLOYD v. CALHOUN.

139 P. 231

78 Wash. 438

LLOYD v. CALHOUN.

Supreme Court of Washington

March 9, 1914

Department 2. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Action by C. B. Lloyd against A. P. Calhoun, with cross-complaint by defendant. Judgment for plaintiff, and defendant appeals. Affirmed.

Will H. Thompson, of Seattle, and Hayden &amp Langhorne and F. D. Metzger, all of Tacoma, for appellant.

Leo &amp Flaskett, of Tacoma, for respondent.

PARKER J.

The plaintiff and defendant seek to recover, each from the other damages resulting from a collision of their automobiles. The plaintiff, by his complaint, claims damages in the sum of $1,325 for injury to his automobile, while defendant, by his answer and cross-complaint, claims damages in the sum of $2,900 for injuries to his automobile and to his person, each resting his claim upon the alleged negligence of the other. A trial before the court and a jury resulted in verdict and judgment in favor of the plaintiff for the sum of $925, from which the defendant has appealed.

The principal contention of counsel for appellant is that the trial court erred in denying his motion for judgment, notwithstanding the verdict, made upon the ground that the evidence was insufficient to sustain the verdict, and that the trial court should have so decided as a matter of law. There was no challenge to the sufficiency of evidence before the rendition of the verdict. We will therefore notice the facts as bearing upon the proper answer to this contention. The collision here involved occurred on the Pacific highway, some 12 miles southwesterly from Tacoma. At this place, the highway runs westerly across a level, open country, is unfenced, ungraded, and undefined upon the ground, except by tracks worn by vehicles. The traveled portion of the highway so indicated at this place is some 50 feet in width, with some intervening grass plots which have not been traveled upon. The particular traveled track upon which respondent and appellant were driving their automobiles just prior to the time of the accident is some 19 feet wide. While there were possibly some portions of this 19 feet somewhat smoother than others, it is apparent that over its whole width it was well worn and well suited for travel by automobiles and other vehicles. Some 500 feet to the west of the place of collision, the road turns to the right and passes through a clump of fir trees, beyond which a person approaching from the east, along the highway, would not be able to see until within a very short distance of the trees. A line of telephone poles is set along the northerly edge of this 19-foot track, some 6 feet therefrom. These poles are set 126 feet apart. The collision occurred some 40 or 50 feet to the west of one of these poles; that is, respondent's automobile ran approximately that distance after passing the pole. The ground immediately to the north of the traveled way is smooth prairie, though not as suitable for travel by vehicles as the worn roadway. During the evening of July 23, 1910, while it was still daylight, respondent was driving his automobile westerly along this portion of the highway at a speed of approximately 20 miles an hour, near the middle of the traveled portion of the 19-foot track, somewhat nearer the northerly side thereof, which would be on his right. When he reached a point some 700 feet from the clump of fir trees through which the highway curves to the right, he saw appellant's automobile near the trees, coming along the road towards him at a high rate of speed, estimated by disinterested witnesses at from 30 to 35 miles an hour.

As to respondent's version of what occurred immediately thereafter, we quote from the abstract of the evidence made by counsel for appellant, with certain corrections therein made from the statement of facts, which we have italicized as follows: 'I noticed an automobile swinging around the curve 600 or 700 feet from me. It was on the Pacific highway road, the same road I was traveling. The first thing I noticed was the car was traveling very fast. I saw it bound up, I should judge about 2 feet high; the speed caused it to bound. There was a depression there in the ground consisting of the short water course. As it had passed over that course, it bounded 2 feet or better. I learned afterwards that Dr. Calhoun and Dr. Ireland were in the car. Dr. Calhoun was driving. I was about 600 to 800 feet from them when I first noticed their approach. Calhoun maintained the same rate of speed from the time I saw him up to about the time the machines came together, when I suppose he tried to stop. He was traveling over the road from one and one-half to two times as fact as I was going. He was running his machine from 30 to 35 miles an hour. I was on the right-hand side of the road. When his car approached, I swung a little nearer to the right of the highway, which brought me about 6 feet from the edge of the road. When I first observed Dr. Calhoun's car, he was in the middle of the Pacific highway, and, after I started to swing from the middle over to my side of the road, he kept gradually curving to his left, and, if he had kept in his direction, he would have left the Pacific highway on my side of the road entirely. Dr. Calhoun's car swung from the middle of the road over to my side of the road. * * * When he swung over to my side of the road, I moved my car over 3 feet closer to this edge of the road, as he approached, running along my side of the road to his left, I simply let my car run straight along here, because there was no use for me to run off this side of the road. I saw finally that there was nothing for me to do to avoid a collision except to turn to my left, which I did. If he had kept the exact direction he was taking, I would have passed him there. But, after I turned to my left, he turned to the right, and then I knew we were going to have a collision, and I started to brake my car so that he would not strike me square in the middle; I kept my car pointed out to the left as much as I could, and allowed him to run into me. I was traveling, when I first saw Calhoun, at approximately 20 miles an hour. When I turned to the left I was within 60 or 75 feet of him. I began to turn right there (indicating on the map the dotted lines). If we had continued in our course, he traveling at 30 miles an hour and me at 20 miles, we would have come together in about a second and a half. * * * I was about 200 feet away from the point of the collision when I first saw Calhoun, traveling about 20 miles an hour, and continued to travel 20 miles an hour until I swung to the right. * * * I knew it was my duty to turn to the right to avoid a collision; but the telephone poles prevented me from turning to the right. That was not the only reason why I didn't turn to the right. The other reason was I...