Mitchell v. Cadwell

Decision Date12 November 1936
Docket Number25720.
PartiesMITCHELL v. CADWELL et al.
CourtWashington Supreme Court

Appeal from Superior Court, Powlitz County; J. E. Stone, Judge.

Action by Levi Mitchell against George C. Cadwell, doing business under the firm name of Pioneer Auto Truck Company and/or Universal Transcontinental Freight Service, the Ocean Accident Guaranty Corporation, Limited, of London, England and another, wherein last-named defendant filed a demurrer. From a judgment for plaintiff, defendant appeal.

Reversed with directions.

Roberts & Skeel and W. R. McKelvy, all of Seattle Joseph T. Woods, of Longview, John Wilkinson, of Vancouver and E. L. McDougal, of Portland, Or., for appellants.

Ronald Moore, of Kelso, for respondent.

TOLMAN Justice.

This action arises out of a traffic accident at the intersection of Fourth avenue and Ash street, in the city of Kelso.

The plaintiff testified that he was driving north on Fourth avenue in a Ford coupé. As he approached Ash, an arterial street running east and west, he stopped at the stop sign some 24 feet south of the south curb line. He looked to his right (east) and saw a truck some 250 or 300 feet distant, driving westerly on Ash toward Fourth avenue. The point at which he saw the truck was some 50 feet east of another north and south avenue intersecting Ash street. He drove slowly, and, as he entered the intersection, he looked again to his right and saw the truck some 200 feet away, it having crossed the other intersecting street; that, assuming he could safely pass through the intersection, he proceeded at a moderate rate of speed, between six and eight miles an hour. Just as the rear of his car had passed the north curb line of Ash, and while opposite the sidewalk, his car was struck by the truck, and driven across Fourth avenue to the west curb. The truck colliding with the plaintiff's car was owned and operated by the defendant Cadwell as a common carrier and driven by Walter Wooten, an employee.

Wooten testified to this effect: The cars collided in the intersection. He was driving westerly on Ash street, intending to turn to the south, his left, on Fourth avenue to make a delivery of goods. He saw plaintiff's car pass the stop sign without stopping. When he first saw plaintiff's car, he was 125 feet from the intersection, and plaintiff was moving rather slowly as he entered the intersection. When the plaintiff reached the center of the street, he slowed down as if going to stop, then suddenly his car gave a jerk, as if he had stepped on the gas, and shot directly in front of the truck. When the driver saw that a collision was inevitable, he applied his brakes and swerved to the right as quickly as he could, thinking that the plaintiff would stop in time and that he could pass him. The driver of the truck turned shortly to the right because he saw another car coming toward him, and, if he had turned to the left, he would have collided with it. He was approaching the intersection at between 20 and 30 miles an hour. He did not know how fast he was going when he hit the plaintiff's car. After the accident, his truck was pointing diagonally across Fourth avenue, and the rear of the truck was in the intersection. He was about 20 feet from the point of impact when he realized the accident was inevitable.

A bystander who saw the accident testified that both cars changed their courses Before the impact, the Ford coupé turning slightly to the west and the truck turning slightly to the east.

At the close of plaintiff's case, the defendants challenged the sufficiency of the evidence. The challenge was denied, as was a like challenge at the close of all the evidence. The jury returned a verdict in favor of the plaintiff for $8,965, and, after the denial of motions for judgment notwithstanding the verdict and, in the alternative, for new trial, judgment was entered upon the verdict. The defendants appeal.

The assignments based upon the court's denial of the challenges to the sufficiency of the evidence and of the motion for judgment notwithstanding the verdict are without merit. These motions were to be considered solely in the light of the plaintiff's evidence, and, so considered, there was enough evidence to carry the case to the jury.

Error is assigned upon the giving of instruction No. 9 by the court. While a general exception was taken to this instruction, the specific objection urged upon the court was directed to the last paragraph of the instruction, which follows: 'You are further instructed that if you find from the evidence in this case that the collision occurred outside of the intersection of Ash and Fourth Street, that the rules of the road concerning the entering of automobiles into intersections would not apply to the plaintiff in this action.'

We are of the opinion that the court committed reversible error in giving this instruction. It is obvious that it was calculated to mislead the jury into the view that, regardless of the train of circumstances originating within the intersection, if the actual collision happened outside the intersection, the respondent would be absolved from the consequences of a breach of the rules of the road in the manner of entering the intersection.

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5 cases
  • Tobias v. Rainwater
    • United States
    • Washington Supreme Court
    • August 17, 1967
    ...1933, 175 Wash. 352, 27 P.2d 567. (Nelson v. Molina, 53 Wash.2d 412, 416, 334 P.2d 170, 172 (1959).) See, also, Mitchell v. Cadwell, 188 Wash. 257, 62 P.2d 41 (1936); Bown v. Fleischauer, 53 Wash.2d 419, 334 P.2d 174 (1959). Clearly, what the statute requires is that the vehicles be simulta......
  • Hayes v. Sears, Roebuck & Co.
    • United States
    • Washington Supreme Court
    • September 3, 1949
    ... ... Tea ... Garden Products Co., 30 Wash.2d 447, 191 P.2d 851 ... In the ... case of Mitchell v. Cadwell, 188 Wash. 257, 62 P.2d ... 41, this court, in an En Banc decision, stated that, in [34 ... Wn.2d 676] ruling upon a motion ... ...
  • Smith v. Leber
    • United States
    • Washington Supreme Court
    • August 18, 1949
    ...verdict, interposed by the defendant in an action, is to be considered solely in the light of the plaintiff's evidence. Mitchell v. Cadwell, 188 Wash. 257, 62 P.2d 41. the foregoing rules in mind, we proceed to an examination of the facts and circumstances pertinent to the narrow issues pos......
  • Hamilton v. Cadwell
    • United States
    • Washington Supreme Court
    • August 5, 1938
    ...81 P.2d 815 195 Wash. 683 HAMILTON v. CADWELL et al. No. 26962.Supreme Court of WashingtonAugust 5, 1938 ... Department ... Appeal ... from Superior Court, Cowlitz County; J. E. Stone, Judge ... Action ... by Levi Mitchell against George C. Cadwell and others for ... injuries sustained in an automobile collision, wherein R. D ... Hamilton, special administrator of the estate of Levi ... Mitchell, deceased, was substituted for plaintiff who died ... while appeal was pending. Verdict and ... ...
  • Request a trial to view additional results
2 books & journal articles
  • Table of Cases
    • United States
    • Washington State Bar Association Washington Civil Procedure Deskbook (WSBA) Table of Cases
    • Invalid date
    ...Mitchell Int'l Enters., Inc. v. Daly, 33 Wn.App. 562, 656 P.2d 1113, review denied, 99 Wn.2d 1021 (1983): 8.7(4) Mitchell v. Cadwell, 188 Wash. 257, 62 P.2d 41 (1936): 18.6(2) Mitchell v. Kitsap County, 59 Wn.App. 177, 797 P.2d 516 (1990): 41.7, 60.6(3)(e) Mitchell v. Wash. State Inst. of P......
  • §18.6 Analysis
    • United States
    • Washington State Bar Association Washington Civil Procedure Deskbook (WSBA) Chapter 18 Rule 18.Joinder of Claims and Remedies
    • Invalid date
    ...specifically prohibited by CR 18(b), the contingent claim against the insurer cannot be joined under Washington law. Mitchell v. Cadwell, 188 Wash. 257, 262, 62 P.2d 41 (1936); Keseleffv. Sunset Hwy. Motor Freight Co., 187 Wash. 642, 648, 60 P.2d 720 (1936); see also CR 14(c) (limiting the ......

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