Millspaugh v. Alert Transfer & Storage Co.

• Decision Date: 01 September 1927
• Docket Number: 20510.
• Court: Washington Supreme Court
• Parties: MILLSPAUGH v. ALERT TRANSFER & STORAGE CO. et al.

259 P. 22

145 Wash. 111

MILLSPAUGH v. ALERT TRANSFER & STORAGE CO. et al.

No. 20510.

Supreme Court of Washington

September 1, 1927

Department 1.

Appeal from Superior Court, Cowlitz County; McKenney, Judge.

Action by Vincent Millspaugh, an infant, by H. L. Millspaugh, his guardian ad litem, against the Alert Transfer & Storage Company and others. Judgment for defendants, and plaintiff appeals. Affirmed.

E. D Germain, of Longview, and W. H. Sibbald, of Kelso, for appellant.

Fisk &amp McCarthy, of Kelso, and Winter & Maguire, of Portland, Or for respondents.

FULLERTON J.

The respondent Alert Transfer & Storage Company is engaged in the business of transporting freight for hire in automobile trucks over the public highways of the state of Washington, under a license authorizing it so to do, issued by the public authorities of the state. The respondent Pacific Automobile Indemnity Exchange is the surety on its official bond. A part of the highway over which the transfer company operates passes through the town of Woodland. Extending over the highway, and marking the north boundary of the town, is a structure in the form of an arch, beneath which is hung an electric light. In the early morning of August 21, 1925, while it was yet dark, the transfer company drove one of its trucks over the highway in a northerly direction through the town of Woodland, and for a distance of between 75 and 100 feet beyond the arch. At that point the lights of the truck went out and the truck was stopped. As it stopped, the truck stood angling on the highway, the front end near the right margin of the way, and the left end near its center, the left rear corner of the truck possibly extending a few inches beyond the center. While the truck was so standing, the appellant, Vincent Millspaugh, riding a motorcycle northerly over the highway, ran into the rear of the truck and received personal injuries.

In this action, the appellant sought to recover for the injuries suffered by the collision. Issue was joined on his complaint, and a trial was entered upon before the court sitting with a jury. At the conclusion of the evidence on the part of the appellant, the court sustained a challenge to its sufficiency and entered a judgment of dismissal with prejudice.

In sustaining the challenge to the evidence, the trial court did not question it as to its sufficiency to make a prima facie case of negligence against the transfer company, but held that the evidence conclusively showed that the appellant was guilty of negligence contributing to the injury. Whether the court rightly so held is the question presented on this appeal.

The statute provides (Rem. Comp. Stat. § 6334) that motorcycles driven upon a public highway shall carry a light on the front thereof, which shall show white or yellow tinted rays visible at least 500 feet in advance of such motor vehicle, and that such light shall be so deflected and arranged as 'to produce sufficient light to reveal objects at least 150 feet ahead thereof and 10 feet on either side of the center line of said vehicle measured at a distance of 10 feet in front thereof. * * *' It is settled law in this state that a thing done in...