Nelson v. Owens

• Court: Washington Supreme Court
• Writing for the Court: HOLCOMB, J.
• Citation: Nelson v. Owens, 166 Wash. 647, 8 P.2d 301 (Wash. 1932)
• Decision Date: 17 February 1932
• Docket Number: 23544.
• Parties: NELSON v. OWENS et ux.

8 P.2d 301

166 Wash. 647

NELSON v. OWENS et ux.

No. 23544.

Supreme Court of Washington

February 17, 1932

Department 1.

Appeal from Superior Court, Pierce County; F. G. Remann, Judge.

Action by Margaret Nelson, as executrix of the estate of Joseph D Nelson, deceased, against J. A. Owens and Clara Owens, his wife. From a judgment for plaintiff, defendants appeal.

Affirmed.

H. P Jones, of Tacoma, for appellants.

Henderson Carnahan & Thompson, of Tacoma, for respondent.

HOLCOMB J.

This action was brought by respondent as executrix of the estate of her deceased husband, under the provisions of Rem. Comp Stat. §§ 183 and 183-1, for damages for the wrongful death of her husband alleged to have been caused by the negligence of appellants.

The evidence on behalf of respondent shows that in the forenoon of August 12, 1928, the deceased and respondent were riding as guests in an automobile owned and then being driven by one Lee in Tacoma. In the Lee automobile were also Mrs. Lee and a Miss McCafferty, niece of respondent.

North M street in Tacoma runs in an easterly and westerly direction, and is intersected by North Seventh street, which runs in a northerly and southerly direction. The view at the southwest corner of this intersection is obstructed by a sloping bank and by a residence to such an extent as to require the observance of the fifteen-mile speed limit within the intersection and the twenty-five miles per hour approaching the intersection, as prescribed by Rem. 1927 Supp. § 6362-3.

The Lee automobile was proceeding along North M street in an easterly direction, and towards this intersection and at about the same time appellant, the husband, was driving his automobile along North Seventh street in a northerly direction. Lee was a street car motorman, which occupation he had followed for some twenty-three years at the time of the trial. He testified that, when he reached a point on North M street sufficiently past this sloping bank and house at the southwest corner to enable him to have an unobstructed view of the approaches to the intersection, he slowed down and glanced up North Seventh street, and saw a car somewhere just past the alley coming in his direction. The point at which he slowed up was identified by an X marked upon a map. It is one hundred fifty feet from the south curb line of M street extended across the intersection to the north curb line of the alley extended. Lee further said that, as he entered the intersection, he slowed down to a rate of speed of twelve miles per hour, and that he then proceeded across the intersection at a rate of about fifteen miles per hour. He said that he had plenty of time to cross the intersection Before the arrival of appellants' car, and that, when he had reached a point about opposite the sidewalk, in other words, east of the intersection, the deceased said to him 'that car is going to hit you.' Lee glanced over his shoulder, and saw appellants' automobile approaching and turning to the right; that he gave his car a turn, but appellants' car had a bumper on it which caught in the rear wheel of Lee's car and tipped it over. It is shown on the map in evidence that near the northeast intersection of North M and North Seventh streets there is a fire hydrant which is about twenty-seven feet east of the east side of the intersection. After the impact, the deceased and respondent were lying east of the hydrant, or over twenty-seven feet from the east side of the intersection. Mrs. Lee also testified that the collision actually occurred east of the east side of the intersection, or beyond and outside of the intersection. A witness for appellants, who was the only eyewitness other than the occupants of the two automobiles, also testified that the collision occurred at a point which he identified on the map, which would be well east of the intersection. Miss McCafferty also testified that, when the Lee car reached the point marked by him as the point at which he slowed down, appellants' car was about at the alley. Appellant testified that the collision occurred on a line with the east line of North Seventh street. It thus appears that, with the exception of appellant, who fixed the place of the collision on the east line of the intersection, all the other witnesses placed it as east of the east side of the intersection, or beyond it.

There was competent testimony that appellant was traveling...