Martin v. Westinghouse Elec. & Mfg. Co., 22834.

• Decision Date: 16 April 1931
• Docket Number: 22834.
• Court: Washington Supreme Court
• Parties: MARTIN et ux. v. WESTINGHOUSE ELECTRIC & MANUFACTURING CO. et al.

297 P. 1098

162 Wash. 150

MARTIN et ux. v. WESTINGHOUSE ELECTRIC & MANUFACTURING CO. et al.

No. 22834.

Supreme Court of Washington

April 16, 1931

Department 1.

Appeal from Superior Court, Spokane County; Joseph B. Lindsley Judge.

Action by J. B. T. Martin and wife against the Westinghouse Electric & Manufacturing Company and others. Judgment for plaintiffs and defendants appeal.

Affirmed.

Preston Thorgrimson & Turner, of Seattle, and Wakefield &amp Witherspoon, of Spokane, for appellants.

Farley, Young & Farley, of Spokane, for respondents.

MAIN, J.

This action was brought to recover for personal injuries and for property damage. The cause was tried to the court and a jury. At the conclusion of the plaintiffs' evidence, the defendants challenged the sufficiency thereof, and moved for a nonsuit, which motion was overruled. At the conclusion of all of the evidence the cause was submitted to the jury, and a verdict in favor of the plaintiffs in the sum of $4,924 was returned. Motion for new trial being made and overruled judgment upon the verdict was entered, from which the defendants appeal.

The accident out of which the litigation arose happened at the intersection of Twenty-Second avenue and Hatch street in the city of Spokane at about 11:30 p. m., November 21, 1929. Twenty-second avenue extends east and west; Hatch street north and south. The roadway on each street is graveled, and neither street is an arterial highway. At the southwest corner of the intersection there is an embankment about seven feet high.

Hatch street, as it approaches the intersection from the south, has a descending grade of about 5 1/2 per cent. Respondents, J. B. T. Martin and wife, together with three others, were proceeding east on Twenty-Second avenue in a Willys-Knight sedan owned by the respondents. Mr. Martin was driving, Floyd Coleman riding in the front seat with him, while in the rear seat were Mrs. Martin, Mrs. Coleman, and another lady. Mr. Martin testified that as they approached the intersection he slowed down to a speed of twelve or fourteen miles an hour, and, just before entering the intersection, he looked to the right and saw a car coming on Hatch street from that direction; the car being a little more than one hundred twenty feet from the center of the intersection, and too far away, as he then thought, to be of particular interest. Mr. Martin proceeded to cross the intersection, driving just to the right of the center of Twenty-Second avenue, at a speed of from twelve to fourteen miles an hour, and, as he crossed the intersection, he looked to the right and observed the lights of the automobile approaching on Hatch street. There was nothing to indicate to him that that car was proceeding at a greater speed than that fixed by law, and he had no appreciation that a collision was likely to occur until just an instant before the impact. Immediately after crossing the center line of Hatch street, the Willys-Knight was struck by the approaching car just past the middle of the right side, on the rear door. Mr. Martin testified that, subsequent to the time he first saw the car approaching on Hatch street, he traveled a distance of thirty or forty feet, and that the Willys-Knight was approximately twelve feet long. When the collision occurred, the Willys-Knight was pushed at right angles to its forward movement at the time of impact, and was turned over on its left side. Mrs. Martin sustained severe injuries, and the Willys-Knight was badly damaged.

The appellants assign but one error, and that is the ruling of the trial court on their motion for a nonsuit. Whether the trial court erred in this respect depends upon whether Mr Martin was guilty of contributory negligence as a matter of law in attempting to cross the intersection when the automobile on Hatch street was approaching on his right. The speed limit across intersections is fifteen miles an hour; between intersections, twenty-five miles an hour. Rem. 1927 Supp. § 6362-3, subsec. b, subds. 2, 5. Whether Mr. Martin was guilty of contributory negligence depends upon whether he acted as a reasonably prudent man, being in the disfavored position, in attempting to cross the intersection while the other car was approaching on Hatch street. He had a right to assume that the approaching car would not exceed the speed limit fixed by law, and...