Murphy v. Hunziker, 23156.

• Decision Date: 05 August 1931
• Docket Number: 23156.
• Citation: 2 P.2d 270,164 Wash. 40
• Court: Washington Supreme Court
• Parties: MURPHY v. HUNZIKER et al.

2 P.2d 270

164 Wash. 40

MURPHY v. HUNZIKER et al.

No. 23156.

Supreme Court of Washington

August 5, 1931

Department 2.

Appeal from Superior Court, King County; Findley, Judge.

Action by Edward J. Murphy against Herman Hunziker and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Reynolds, Ballinger, Hutson & Boldt, of Seattle for appellants.

Padden & Moriarity, of Seattle, for respondent.

FULLERTON J.

This action arose out of an automobile collision at a street intersection. The respondent sued the appellants to recover for personal injuries and for damages to his automobile. The appellants made no counterclaim. The appellant Herman Hunziker owned and was driving the automobile that collided with the respondent's car. The appellant Jane Doe Hunziker was joined because of the marital relation; and the appellant Poole, because Herman Hunziker was in his employ and engaged in business for him at the time of the collision. For brevity, we shall hereafter refer to but one appellant Herman Hunziker. The trial resulted in a verdict in favor of the respondent, and from a judgment on the verdict this appeal was taken.

The assignments of error present two questions: (1) Whether the respondent, upon all of the evidence, was guilty of contributory negligence as a matter of law; and (2) whether the court erred in refusing to give a requested instruction which we shall later set out verbatim.

The accident occurred at the intersection of Dayton avenue and North Seventy-Ninth street in a residential district in the city of Seattle. Dayton avenue runs north and south, and North Seventy-Ninth street intersects it at right angles. Both streets are paved with concrete in the middle, the paving on each being twenty-five feet wide between the curbs and both have concrete sidewalks bordering the property lines, and there are parking strips between the walks and the curbs.

There was competent evidence from which the jury might reasonably have believed that the accident happened in the way we shall now describe. The respondent was driving west on the north side of North Seventy-Ninth street in an old Ford roadster, model T. The speed of the car, as it approached the intersection, was about fifteen miles per hour, which may have been reduced somewhat as the car was about to enter the intersection. At the northeast corner of the intersection a dwelling house and some shrubbery in front of it so obstructed the view from North Seventy-Ninth street north along Dayton avenue that not until the respondent came within thirty feet of the east margin of Dayton avenue could he have seen any considerable distance north along the avenue. At that point he could have seen north along the west side of the avenue about one hundred thirty feet and along the east side about one hundred feet. When he reached that point, he was looking for vehicles approaching from the north, and, seeing none, glanced south along Dayton avenue. Seeing no vehicle approaching from the south, he drove on into the intersection. When he was in the middle of the intersection, glancing to his right, he saw the appellant's automobile, about fifty feet away, coming toward him at high speed. He tried to accelerate the speed of his own car, and perhaps did accelerate it slightly; but the approaching car, with a skidding noise, curved westerly and struck the respondent's car when it was on the west line of the intersection. The impact was so violent that the force of it, combined with the momentum of the respondent's car, threw the respondent's car some thirty feet or more...