McCoy v. Courtney
| Decision Date | 06 September 1946 |
| Docket Number | 29884. |
| Parties | McCOY v. COURTNEY et ux. |
| Court | Washington Supreme Court |
Department 1
Action by William A. McCoy, as administrator of the estate of Helen McCoy, deceased, against Dale Courtney and wife to recover for the wrongful death of plaintiff's decedent when run over by defendants' automobile. From a judgment of dismissal, plaintiff appeals.
Judgment reversed with direction to grant a new trial.
Appeal from Superior Court, Kitsap County; Edmund Stafford, judge.
McMicken Rupp & Schweppe and Elliott & Martin, all of Seattle, for appellant.
John D MacGillivray, of Tacoma, for respondents.
Plaintiff as administrator of his wife's estate brought suit to recover damages for the death of his wife who, upon alighting from defendants' automobile, had been struck down and run over by the vehicle as it rolled backwards down a public street. Defendants denied any negligence on their part and pleaded affirmatively contributory negligence on the part of the deceased; this, in turn, was denied by the plaintiff in his reply. The cause came on for trial Before the court sitting with a jury. At the conclusion of plaintiff's evidence, the court sustained defendants' challenge to its legal sufficiency and granted their motion for involuntary nonsuit. From a judgment dismissing the action, plaintiff appealed.
The unfortunate accident occurred about ten o'clock in the evening of October 17, 1944, on Times street, in the city of Bremerton. Appellant, William A. McCoy, was the husband of Helen McCoy, the decedent, who, at the time of her death was of the age of thirty-seven years. Respondents, Dale Courtney and Irene Courtney, husband and wife, were the owners of a 1940 Mercury sedan which they admittedly maintained as a family car.
Paragraph five of the complaint describes the occurrence of the accident as follows:
'That on the 17th day of October, 1944, at about 10:00 o'clock P.M., the said defendant [respondent] Irene Courtney, while acting in her capacity as a member of said marital community of Dale Courtney and Irene Courtney, requested the said Helen McCoy to drive her, in the 1940 Mercury Sedan hereinBefore described, from the Courtney residence in Bremerton to the business district of the City of Bremerton; that the said Helen McCoy, solely as an accommodation to said defendants [respondents], agreed to and did drive said Irene Courtney in accordance with said request; that upon returning to the defendants' residence, the said Helen McCoy parked said vehicle on Times Avenue, a public street in front of the Courtney home in Bremerton, set the hand brake on said car, and alighted therefrom; that immediately after the said Helen McCoy alighted from said vehicle the brake failed to hold said car and it started to roll downhill backwards; that the said Helen McCoy attempted to stop said vehicle by pulling upon said hand brake, but was unable to do so; that said car knocked the said Helen McCoy to the street, ran over her, and inflicted internal injuries which resulted in her death on October 19, 1944; that as to repair and maintenance, and efficiency of operation, said 1940 Mercury Sedan, and particularly the entire brake system thereon, was under the exclusive control of the defendants and each of them.' (Italics ours.)
In their answer, respondents admitted all of these allegations of the complaint except those which we have italicized.
Appellant in his complaint further alleged that the respondents were negligent in allowing the brake lining of their automobile to become so badly worn as to cause the hand brake to become inadequate and unsafe; maintaining, and requesting Helen McCoy to drive, an automobile with a deceptive and unsafe hand brake, in that it would feel and appear to a driver to be set and effective, when in fact it would not prevent the car from rolling; furnishing to Helen McCoy, to use and operate, a dangerous instrumentality having defects, as hereinBefore related, which were latent and concealed; and failing to advise Helen McCoy that the brake was unsafe. Respondents specifically denied all of these allegations, and in their affirmative defense alleged that the injuries received by the decedent were proximately caused by her failing to secure effectively the automobile at the time of stopping and parking it on a perceptible grade.
Respondents produced no evidence in their own behalf but made a motion for an involuntary nonsuit, which was granted. The facts are therefore to be determined from appellant's evidence and the reasonable inferences flowing therefrom.
For some time prior to the accident, the McCoys and the Courtneys had been nextdoor neighbors and were close friends. Their homes face, in front, on Ford street in Bremerton, and, to the rear on Times street. The McCoy home is immediately south of the house occupied by the Courtneys.
Times street is an ordinary graveled roadway. Opposite the McCoy home the street is almost level, while opposite the Courtney home it slopes slightly downward toward the north, the degree of the decline increasing in that direction to such an extent that immediately north of the Courtney property the grade is quite steep. The crest of the hill is about opposite the back gate of the Courtney property. Entrances to the garages on both properties are from Times street.
Each of the families owned an automobile, and appellant McCoy, who is the local manager of the telephone company, also operated a company car which he kept in the double garage on his premises. As means of entrance and exit, both families used Times street more frequently than Ford street, and it was their custom to park their cars on that street opposite the rear of their respective homes.
Mr. Courtney used his car for both business and pleasure purposes. Mrs. Courtney did not drive the car, did not know how to operate it, and knew nothing about its operation, equipment, or condition. The decedent, Mrs. McCoy, was an experienced driver, having operated automobiles since she was fifteen years of age.
At the time of the accident Mr. Courtney was, and for about a week or ten days prior thereto had been, in Idaho on a hunting trip, but had left his car and the keys thereto at home.
On the night of October 17th, about 9:30 o'clock, while Mr. and Mrs. McCoy were visiting a neighbor, Mrs. Courtney called by telephone and requested Mrs. McCoy to take her, in the Courtney car, on an errand in the business district of Bremerton. Mrs. McCoy acceded to the request and, accompanied by Mrs. Courtney, drove the car from the Courtney residence to the point of objective and back again. Mr. McCoy remained at the neighbor's house for a few minutes and then went back to his home.
Upon her return from the errand with Mrs. Courtney, Mrs. McCoy parked the car on Times street back of the Courtney residence. Almost immediately after she had stepped out of the car, it began to roll backwards, in a northerly direction, down the slope of the hill. She attempted to stop the car, in some manner not made entirely clear in the record, and in her attempt was knocked down and run over, suffering injuries which two days later resulted in her death.
In the excitement of the event, Mrs. Courtney screamed, and Mr. McCoy, hearing her, ran from his residence to where Mrs. Courtney was standing. She told him that 'Helen,' Mrs. McCoy, had been run over. He then ran further down the hill calling to his wife and endeavoring to locate her in the darkness. She answered his call and thus he was able to find her, lying in the roadway. While lying prone upon the ground, she exclaimed: He then carried her into the house, summoned an ambulance, and had her taken to the hospital.
About an hour and a half later, Mr. McCoy returned from the hospital and then went to locate the runaway car, intending to drive it back up the hill to the place where it was customarily parked. He found that the car had crossed the road and rolled down the hill a distance of seventy-five feet, where it had stopped in a clump of bushes, beside a telephone pole. The car was out of gear at that time and the brake was 'half-way on,' that is, the lever was half-way back. He drove the car up the hill and parked it back of the McCoy residence at a point where the ground was level. There, he left the car in gear, with the brake pulled all the way back, and in that condition the vehicle remained stationary overnight.
One of the principal issues in the case concerned the condition of the hand brake of the Courtney car at the time of the accident. Mr. McCoy testified that some two months prior thereto, while the two families were at the Courtney summer home on Hood Canal, he and Mr. Courtney had used the car in an endeavor to tow a disabled automobile belonging to Mr Courtney's sen-in-law; that on that occasion, while operating the Courtney...
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