Moen v. Chestnut

Decision Date02 June 1941
Docket Number28252.
Citation113 P.2d 1030,9 Wn.2d 93
PartiesMOEN et ux. v. CHESTNUT et ux.
CourtWashington Supreme Court

Department 1.

Suit by Alfred Moen and wife against Victor L. Chestnut and wife for damages sustained in an automobile collision. From a judgment for plaintiffs, the defendants appeal.


Appeal from Superior Court, Yakima County; Robert J. Willis, Judge.

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

Harry L. Olson, of Yakima, for respondents.


Plaintiffs brought suit to recover damages for impairment of their automobile and for personal injuries to plaintiff wife resulting from a collision with an automobile owned by defendants. The action was tried to a jury, which returned a verdict for plaintiffs. From a judgment on the verdict, defendants appealed.

For convenience, plaintiff wife, Margaret Moen, will be referred to, in this opinion, as though she were the sole respondent and defendant husband, Victor L. Chestnut, will be referred to as though he were the sole appellant.

The collision involved herein occurred in broad daylight, at about 6 P. M. on August 4, 1939, within the intersection of Summitview view avenue and North Sixteenth avenue in the city of Yakima. Summitview avenue is an arterial highway, and runs in an easterly and westerly direction. North Sixteenth avenue is a nonarterial street; it runs in a northerly and southerly direction, and intersects Summitview avenue at right angles. Summitview avenue east of the intersection is thirty-six feet wide, and west of the intersection is thirty-two feet wide. North Sixteenth avenue, in the vicinity of the intersection has a constant width of thirty-two feet. Both streets are paved. At the northeast corner of the intersection is a vacant lot; at the southeast corner is a bungalow court, the northwest corner of which is approximately twenty-two feet east of the east curb line of North Sixteenth avenue, and is sixteen and one-half feet south of the south curb line of Summitview avenue; the northwest corner of the intersection is occupied by store buildings; and at the southwest corner is a public school.

At a point near the curb on the east side of North Sixteenth avenue, approximately twenty-two feet south of the intersection, is a stop sign indicating that Summitview avenue is an arterial highway. Along the north side of Summitview avenue, east of North Sixteenth avenue, and just inside the curb, is a series of three 'school warning' signs. The first of these signs is thirty feet east of the east sidewalk on North Sixteenth avenue, and has printed upon it, in large letters, 'School Crossing, Stop When Occupied.' The second sign is located seventy-five feet east of the first sign, and bears the inscription 'School Zone, Speed Limit 15 Miles.' The third sign is located one hundred eighty-four feet east of the second sign, and has the word 'Slow,' in large letters, upon it.

Respondent, accompanied by a lady friend and the thirteen year old son of the latter, was driving her 1936 Chevrolet coupe in a northerly direction along North Sixteenth avenue, approaching the intersection in question. Appellant was driving a Hudson automobile in a westerly direction along Summitview avenue, toward the same intersection. Appellant was thus the favored driver, for the double reason that he was traveling upon an arterial highway and that he was the driver on the right.

Respondent's automobile entered the intersection first, proceeded across, and had reached a point where only three or four feet of the back portion of the car was yet within the intersection when its rear bumper and a portion of its right rear fender struck, or were struck by, the front end of appellant's automobile. As a result of the collision, respondent's automobile was thrown sideways, in a northwesterly direction, a distance of three or four feet, struck an automobile which had arrived, and was waiting, at the north line of the intersection, recoiled from the impact with that automobile, and then turned over onto its top, with its front end facing east. Most of the details of the accident, particularly the fact as to whether or not respondent came to a stop Before entering the intersection, and the question as to which one of the two cars here involved ran into, or against, the other, were the subjects of a sharp conflict in the evidence.

Respondent's testimony was as follows: Proceeding north along North Sixteenth avenue, she approached Summitview avenue at a speed of about fifteen miles per hour, and brought her car to a complete stop at the intersection. Just prior to that, her lady companion had cautioned her that: 'This is Summitview we are coming to. It is a very bad intersection and be careful.' Another car, also going north on North Sixteenth Avenue, had stopped abreast, on the right, of respondent, and later turned the corner to go east. A third car, approaching from the west on Summitview avenue, had stopped at the western line of the intersection. After coming to a stop, she, respondent, looked to her right and observed appellant's car at a point near the third, or 'slow,' sign on Summitview avenue, a distance of two hundred fifty feet, or more, away. She estimated appellant's speed at that time at about fifteen miles per hour, and observed that he was then slowing down. Thinking that she had plenty of time to get across the intersection, she shifted gears and proceeded forward in low gear at a steady, sustained speed of about five miles per hour. When about half way across the intersection, she looked to her right again and observed appellant's car about one hundred ninety feet away, between the second and third signs. It had then slowed down to about seven or eight miles per hour. Respondent then gave her attention to the road directly ahead of her, and was proceeding cautiously because of pedestrians who were standing on the corner, or were passing back and forth along the north crosswalk of the intersection, just in front of her. She had thus reached a point where all but three or four feet of the rear portion of her car was out of the intersection when appellant's automobile struck her rear bumper and a portion of her rear right fender, with the result already described. Respondent freely admitted that she had not seen the arterial stop sign near the southeast corner of the intersection, and that she had so stated after the accident. She testified positively, however, that she had nevertheless stopped Before entering the intersection, and denied that she had ever made a contrary admission.

Appellant's version of the accident was materially different. It may be summarized thus: He had been traveling at a speed of about twenty-five miles per hour in the block east of the intersection. At a point approximately fifty feet from the east line of North Sixteenth avenue, he slowed down to about ten miles per hour. Respondent's car was at that time approaching from the south, at a speed of about twenty-five miles per hour, but slowed down to about fifteen or twenty miles. As respondent's car came to within fifty or seventy-five feet of the intersection, he, appellant, could hear the sound of her 'motor on compression,' and saw her car slowing down, which clearly indicated to him that respondent would stop at the stop sign. As he entered the intersection, however, traveling at the rate of ten miles per hour, respondent's car, instead of stopping, suddenly speeded up, entered the intersection at a speed of about twenty miles per hour, then increased its speed to twenty-five miles, and 'cut' in front of him, raking the front end of his automobile. He had applied his brakes as soon as it became apparent that respondent was not yielding the right of way, and brought his car to a sudden stop, but was a second too late to avoid the collision. Following the impact, appellant's automobile did not move from its position, but remained stationary until appellant himself later drove it across the remainder of the intersection and parked it a short distance away. Appellant further testified that respondent, while still at the scene of the accident, admitted that she had not stopped at the intersection.

The only other eyewitness who testified with reference to the collision was a lady who resided in the bungalow court located on the southeast corner of the intersection. Called as a witness for respondent, she testified that on looking out of one of the windows of her apartment, toward the north, she observed appellant's car approaching the intersection from the east; that she first saw it when it was at a point opposite her window, and that it was then traveling at a speed of about fifteen miles per hour; that immediately thereafter 'he seemed to speed up a little bit;' that his speed seemed to increase up to the point of the collision; that the right rear side of respondent's car was struck, when it was about three-fourths of the way across the intersection. The witness had not observed respondent's car prior to the collision.

Appellant called eight witnesses for the purpoe, among others, of corroborating his claim that respondent had admitted that she did not stop Before entering the intersection. Four of those witnesses testified that respondent had stated simply that she did not see the stop sign. It will be recalled that respondent herself had so testified. The other four witnesses testified, more or less categorically, that they had heard respondent admit that she had not stopped.

On the other hand, at the conclusion of appellant's evidence respondent was allowed to reopen her case and present a witness who testified that he, the witness, had been traveling east on Summitview avenue just prior to the...

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    ...was admissible from the standpoint of the hearsay objection. State v. Mott, 74 Wash.2d 804, 447 P.2d 85 (1968); Moen v. Chestnut, 9 Wash.2d 93, 113 P.2d 1030 (1941); R. Meisenholder, 5 Wash.Prac. § 381 (1965, Supp.1974). SPONTANEOUS STATEMENTS The defendant also contends that, since the sta......
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