Mathers v. Stephens

Decision Date19 February 1945
Docket Number29421.
Citation22 Wn.2d 364,156 P.2d 227
PartiesMATHERS et ux. v. STEPHENS et ux.
CourtWashington Supreme Court

Department 1.

Action by Ray Mathers and wife against W. T. Stephens and wife for personal injuries and property damage arising out of an automobile collision. Defendants' motion for judgment notwithstanding jury's verdict for plaintiffs was granted and their alternative motion for a new trial was denied, and from a judgment dismissing the action, plaintiffs appeal.

Judgment reversed and cause remanded with directions.

Appeal from Superior Court, Kittitas County Arthur McGuire, judge.

John C Richards, of Everett, for appellants.

E. K. Brown, of Ellensburg, and I. J. Bounds, of Yakima, for respondents.

GRADY Justice.

The appellants, Ray Mathers and wife, brought this action against the respondents, W. T. Stephens and wife, to recover damages for injuries to person and property arising out of a collision of their respective automobiles. In this opinion the respective husbands will be referred to as though they were the only parties to the action.

The theory of the complaint was that as the appellant was driving his automobile along the right hand side of an arterial highway the respondent, who was driving his automobile along a county road which intersected the arterial highway diagonally, negligently drove it directly in front of appellant's automobile and collided with it. The theory advanced by the respondent was that after he had stopped at a stop sign near the intersection he proceeded to cross the arterial highway and had gotten nearly across it when appellant negligently collided with his automobile.

A trial Before the court and a jury resulted in a verdict for the appellant. The court granted a motion of the respondent for a judgment notwithstanding the verdict and denied an alternative motion for a new trial. A judgment was entered dismissing the action and this appeal followed.

The appellant claims that the court erred in entertaining the motion for a judgment notwithstanding the verdict and for a new trial because they were not timely served and filed.

The verdict was returned on Friday, the 17th day of December, 1943, at 8:55 P.M. The alternative motion was filed on December 18, 1943. The trial was held in Ellensburg. Counsel for appellant resided at Everett. Shortly after the return of the verdict he went to his place of abode. On December 18, 1943, one of counsel for respondent duly mailed to counsel for appellant a copy of the alternative motion. Service of the motion was accepted by counsel for appellant on December 21, 1943.

Rule 28(5) of this court provided:

'Service may be made by mail when the party making the service and the person on whom such service is to be made reside in different places between which there is regular communication by mail; postage must in such cases be prepaid. Time shall begin to run from the date of deposit in the post office.'

It thus appears that as the alternative motion was filed and mailed on December 18, the requirement of Sections 402 and 431, Rem.Rev.Stat., providing that motions for a new trial and for judgment notwithstanding the verdict must be filed and served within two days after the verdict of the jury was fully met. The court was right in overruling the objections of the appellant directed to the alternative motion of respondent.

The granting of the motion for a judgment notwithstanding the verdict of the jury was based upon the ground that the appellant was guilty of contributory negligence as a matter of law and such negligence was a proximate cause of the collision, in that he violated Sec. 6360-64(2)(f):

'Subject to the provisions of subsection (1) of this section and except in those instances where a lower maximum lawful speed is provided by this act or otherwise, it shall be unlawful for the operator of any vehicle to operate the same at a speed in excess of the following: * * *

'(f) Thirty-five (35) miles per hour in traveling upon an arterial highway outside of incorporated cities and towns and traversing an intersection with another public highway not an arterial highway and the operator of another vehicle about to enter such arterial highway thereat shall have brought his vehicle to a complete stop, as required by law, Before entering such arterial highway.'

The factual situation as disclosed by evidence and reasonable inferences therefrom viewed in the most favorable light from the standpoint of the appellant, in so far as we deem it necessary to consider the same in determining whether the trial court reached the correct conclusion, was as follows:

Going from Ellensburg towards Cle Elum and at the place in question, Arterial Highway No. 97, ran in a northwesterly direction. It was paved with concrete and was twenty feet in width. There was a shoulder about eight feet in width on each side. A few miles out of Ellensburg Highway No. 97 was intersected by a County road of black top pavement known as the Woldale road. This road ran approximately due north and south and intersected highway No. 97 diagonally. There were stop signs on the side of the Woldale road, but there were no signs on No. 97 indicating to the traveling public that there was a cross road ahead. On July 5, 1941, at about the hour of 7 o'clock in the afternoon the appellant was driving his automobile northwesterly along highway No. 97 at a speed estimated between 45 and 50 miles per hour. The respondent was driving his automobile along that part of the Woldale road southwesterly of highway No. 97 and in a northerly direction. Melvin Johnson was driving his automobile on that part of the Woldale road northeasterly of highway No. 97 and in a southerly direction. In other words, the Johnson car was to the right of appellant and respondent's car was to his left. Johnson drove his car up close to highway No. 97 and came to a stop. He first saw the appellant's car when it was estimated to be 150 feet from the intersection and it was moving at an estimated speed of 45 to 50 miles per hour. Johnson stopped his car a few seconds (estimated) Before the Stephens car came up to the intersection. It did not stop, but proceeded across highway No. 97 at an estimated speed of 15 miles per hour. The appellant first observed the Johnson car standing on the road when he was at an estimated distance of 100 to 150 feet from the intersection. He then, for the first time, observed the respondent's car coming from his left and he was then at an estimated distance of 100 feet from the intersection. Appellant applied the brakes to his car and swerved it to his left. The right front wheel of his car struck the right rear of the respondent's car.

At the time of impact the right front wheel of appellant's car was about three feet over the yellow center line of the highway. The force of the impact caused respondent's car to partly turn and it came to rest at a point west of the Woldale road and northwesterly from the place of impact. In its course it nicked a fender of the Johnson car. The appellant's car crossed diagonally...

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26 cases
  • City of Seattle v. Blume
    • United States
    • Washington Supreme Court
    • 13 Noviembre 1997
    ... ... Bernethy v. Walt Failor's, Inc., 97 Wash.2d 929, 935, 653 P.2d 280 (1982) (quoting Mathers v. Stephens, 22 Wash.2d 364, 370, 156 P.2d 227 (1945)) ...         The present case provides this court with the opportunity to analyze ... ...
  • Petersen v. State
    • United States
    • Washington Supreme Court
    • 20 Octubre 1983
    ...plain and incapable of reasonable doubt or difference of opinion that it may be a question of law for the court. Mathers v. Stephens, 22 Wash.2d 364, 370, 156 P.2d 227 (1945), quoted in Bernethy, 97 Wash.2d at 935, 653 P.2d 280. Accord, Bordynoski v. Bergner, 97 Wash.2d 335, 341, 644 P.2d 1......
  • Brewster v. King Cnty.
    • United States
    • Washington Court of Appeals
    • 4 Octubre 2011
    ...may be a question of law for the court.'" Bordynoski v. Bergner, 97 Wn.2d 335, 340, 644 P.2d 1173 (1982) (quoting Mathers v. Stephens, 22 Wn.2d 364, 370, 156 P.2d 227 (1945)). Accordingly, the issue of proximate cause may be determined on summary judgment where the evidence is undisputed an......
  • Brewster v. King County
    • United States
    • Washington Court of Appeals
    • 4 Octubre 2011
    ... ... the court.'" Bordynoski v. Bergner , 97 ... Wn.2d 335, 340, 644 P.2d 1173 (1982) (quoting Mathers v ... Stephens , 22 Wn.2d 364, 370, 156 P.2d 227 (1945)) ... Accordingly, the issue of proximate cause may be determined ... on ... ...
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