Masterson v. McGoldrick Lumber Co.

• Decision Date: 03 January 1924
• Docket Number: 18182.
• Citation: 128 Wash. 1,221 P. 990
• Court: Washington Supreme Court
• Parties: MASTERSON v. McGOLDRICK LUMBER CO.

221 P. 990

128 Wash. 1

MASTERSON v. McGOLDRICK LUMBER CO.

No. 18182.

Supreme Court of Washington

January 3, 1924

Department 1.

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

Action by Frank Masterson, a minor, by D. L. Masterson, his guardian, against the McGoldrick Lumber Company, a corporation. The court dismissed the case, and plaintiff appeals. Affirmed.

R. L Campbell, of Spokane, for appellant.

E Eugene Davis, of Spokane, for respondent.

MACKINTOSH J.

The appellant, by his guardian ad litem, is suing the respondent which was the owner of a truck some 18 or 20 feet in length loaded with lumber, which came into collision with a bicycle ridden by the appellant at the intersection of Mission avenue and Hamilton street, in the city of Spokane; the only permanent injury resulting to the appellant being a scar upon his head. The appellant, at the time of the injury (July, 1920), was a youth of the age of 13 years, who for some time had been engaged as a messenger boy, and as such was accustomed to ride his bicycle and was familiar with the scene of the accident.

The appellant himself, though appearing as a witness, contributed nothing to the record in the way of testimony as to the occurrence. He testified that he was rendered unconscious by the impact, and had no recollection of what had happened before or at the time thereof. Only one eyewitness was called by the appellant. This witness was some two blocks distant from the intersection, and it is upon his testimony alone that the appellant must rely in establishing his cause of action. At the conclusion of the appellant's case, the respondent challenged the sufficiency of the evidence, and the case was dismissed.

The testimony is that the appellant was riding his bicycle in a southerly direction on the westerly side of Hamilton street midway between the curb and the west street car track (which would place him somewhere about 9 or 10 feet from the curb), and that the respondent's truck was being driven in a northerly direction on the east side of Hamilton street, about midway between the curb and the street car tracks; that the respondent's truck was being driven about 13 or 18 miles an hour, and that when it reached the intersection of Hamilton street with Mission avenue (which is 100 feet in width), instead of proceeding to the center of the intersection and making his right-angled turn to the westerly on Mission avenue, the truck turned south of the center of the intersection and proceeded to the northerly half of Mission avenue, Mission avenue at that place containing a park area 20 feet in width in its center; in other words, that the truck cut the corner. The appellant's bicycle came into collision with the truck near its rear end, and the point of collision is fixed as being near or close to the center of the westerly side of Hamilton avenue, or near the west rail of the west car track, and either a little to the north or to the south...