Miller v. Asbury, 28444.

• Citation: 125 P.2d 652,13 Wn.2d 533
• Decision Date: 13 May 1942
• Docket Number: 28444.
• Parties: MILLER v. ASBURY et ux.
• Court: Washington Supreme Court

125 P.2d 652

13 Wn.2d 533

MILLER v. ASBURY et ux.

No. 28444.

Supreme Court of Washington

May 13, 1942

Department 2.

Action by Chrystal Miller, as administratrix of the estate of Albert Miller, deceased, against H. M. Asbury and wife for the death of plaintiff's deceased resulting from an automobile collision at highway intersection. From a judgment for plaintiff, defendants appeal.

Judgment reversed and action ordered dismissed.

BLAKE J., dissenting.

Appeal from Superior Court, Yakima County; Dolph Barnett, Judge.

Shank Belt, Rode & Cook, of Seattle, for appellants.

Forest & Forest, Bonsted & Nichoson, and F. C. Palmer, Jr., all of Yakima, for respondent.

ROBINSON Chief Justice.

This action arose out of an automobile collision at the intersection of Fort Simcoe road and Lateral 'A' highway, seven miles west of Toppenish. The driver of one of the cars, Albert Miller, twenty-three years of age, received injuries from which he died. His widow recovered a verdict for $1,713.45.

The Asburys appeal, contending that the court erred in refusing to grant their motion for judgment notwithstanding the verdict.

Fort Simcoe road is a black top arterial highway, surfaced twenty feet in width, extending in an easterly and westerly direction. Lateral 'A' highway is graveled, twenty feet in width, and extends in a northerly and southerly direction, intersecting the Fort Simcoe road at right angles. The intersection is wholly unobstructed by buildings, bushes or other objects. Near the southeast corner of the intersection, thirty feet from the south edge of the black top, is a stop sign.

On July 20, 1940, appellant Asbury was driving east on the Fort Simcoe road and approaching the intersection. Miller, with a companion, Albert Messe, was driving north on Lateral 'A,' approaching the same intersection. The two cars came into collision. The point of impact, according to the testimony most favorable to respondent, was several feet north and east of the exact center of the intersection. Miller's car was struck on the left-hand side near the middle, made three complete turns, and came to rest in a ditch on the right-hand side of Lateral 'A' highway, forty-five feet north of the point of impact. Asbury's car made one and one-half turns and came to rest on the south side of the Fort Simcoe road, one hundred and five feet east of the point of impact.

Messe was the principal witness for respondent. He had lived with Miller's mother and stepfather for eight years. Miller and Messe had worked together a great deal of that period, and at the moment were returning from a threshing job.

Officer Tull, of the state patrol, testified that, on the night of the accident, Messe told him, at the hospital, that they approached the intersection at a speed of eight miles per hour. A month less one day after that, Messe made a statement in the state patrol office, which was reduced to writing and signed by him, he swearing Before a notary: 'That I have read the foregoing statement and believe it to be a true and impartial statement of facts.'

The statement is in evidence as Exhibit '14', and reads, in part, as follows:

'I rode with Albert and he was driving his 1937 Ford V-8, I don't know the license number, and we started for home at Wapato. We both live at the Bartell home. We were driving north on the Lateral A road at a speed of perhaps 35 m.p.h. as that is his usual speed. I have ridden with him for the past seven years. The sky was cloudy but it was not storming.

'As we approached the Fort Road I noticed a car coming from the west, going east, on the Fort Road at least 70 m.p.h. At any rate it was a high rate of speed. As we approached the intersection Miller slowed the car to about four or five miles an hour in my judgment. He didn't come to a complete stop. He turned his head to the west so he must have seen the car coming. I thought he saw the car coming as he turned his head that way so I didn't say anything. I thought he would stop and wait until the car went by. The last thing I noticed, just a fraction of a second Before we were hit, I noticed the back of our car was past the middle of the intersection and then I don't remember anything.

'The above statement which I have given as near as I can remember is in substance the same as I told Officer Tull at Bozarth Nursing Home the night of the accident at about two hours after the accident. This is a true statement. Since talking to Officer Tull the night of the accident I have a statement to Mr. Forrest, attorney from Yakima, and in the statement I have to Mr. Forrest I stated that Mr. Miller came to a complete stop. I wish to state here now, and incorporate as a part of this statement, that my statement to Mr. Forrest with regard to Mr. Miller's stopping was untrue.'

At the trial, Messe reiterated that he had falsely stated to Mr. Forrest, one of respondent's counsel, that Miller had come to a complete stop Before entering the arterial. He also testified that, when he signed the affidavit stating that Miller slowed down to 'four or five miles an hour,' he was nervous, and that, in fact, Miller slowed down to 'one to three miles an hour.' To this estimate he clung firmly through a searching cross-examination, and this will be considered his evidence on that point in our consideration of the question presented for decision.

Messe further testified that, as the front wheels of their car arrived at the south edge of the black top, it was proceeding at from three to four miles per hour, and that, at that instant, when its front wheels were just starting to go on the black top, he saw the Asbury car, abreast of a road sign, coming toward them at at least seventy miles per hour. This sign was, by actual measurement, 315 feet from the intersection. He had stated in the affidavit that, at the moment of impact, the Miller car was past the middle of the intersection. At the trial, he testified that the rear two feet of it were still south of the center line of the Fort road.

After the respondent's case was in, Fred Wright, an eyewitness of the accident, was discovered by her attorneys, and, upon their motion, the respondent's case was reopened and his testimony taken. Wright testified that he was working in a field about an eighth of a mile from the scene of the accident, and that the Asbury car approached the intersection at seventy-five miles per hour; that he first saw it when it was opposite a small shack which proved, upon measurement, to be two hundred feet from the intersection. He described the movement of the Miller car as follows: 'Well, it seemed like he had slowed down Before he got to the intersection and he entered the intersection and he...