Nenezich v. Elich

• Decision Date: 24 September 1935
• Docket Number: 25280,25279.
• Citation: 49 P.2d 33,183 Wash. 657
• Parties: NENEZICH v. ELICH. COVACH v. SAME.
• Court: Washington Supreme Court

49 P.2d 33

183 Wash. 657

NENEZICH v. ELICH.

COVACH v. SAME.

Nos. 25280, 25279.

Supreme Court of Washington

September 24, 1935

Department 1.

Appeal from Superior Court, King County; James B. Kinne, Judge.

Actions by Mildred Nenezich and Ruby Covach against Nick Elich. Judgments for defendant, and plaintiffs appeal.

Reversed and remanded, with directions.

Vanderveer & Bassett, of Seattle, for appellants.

Whittemore & Truscott, of Seattle, for respondent.

GERAGHTY Justice.

We have here two actions consolidated for purposes of trial and appeal. The plaintiffs were invited by the defendant to accompany him on an automobile ride as his guests. Another guest rider, John Lucich, brought suit below but his case is not Before us on this appeal. The defendant accompanied by the plaintiffs, drove from the Ballard district in Seattle to Everett by the Bothell Highway. Without stopping at Everett, he proceeded to return to Seattle by the Pacific Highway.

Holman road No. 2, referred to as the Ballard road, extends southwesterly from a point on the Pacific Highway four miles north of Seattle. The junction of the two road forms a 'wye' with its apex to the north. Proceeding southerly toward Seattle, there was a 'Slow' sign on the right-hand side of the Pacific Highway 300 feet north of the junction. On the right-hand side of the Ballard road proceeding northeasterly there was a 'Stop' sign about 50 feet from the junction.

Immediately Before the accident, Mrs. Lizzie A. Hendricks was driving a car, accompanied by her son and another woman, northeasterly on the Ballard road, intending to take the Pacific Highway from the junction to Everett. She brought her car to a stop about 2 feet back of the 'Stop' sign, on the right-hand side of the pavement, waiting for the north and south-bound traffic to clear so that she could enter the highway. While her car was at rest, she saw two cars approaching from the north, one behind the other. The first car passed the intersection in the direction of Seattle, the second, driven by respondent, turned into the road, striking the left front of her car. The fronts of both cars were raised from the pavement by the force of the impact, which also threw respondent's car into reverse. It backed away from the Hendricks car and circled around two or three times upon the pavement Before coming to a stop. The plaintiff Nenezich was thrown from the car, suffering severe injuries. Plaintiff Covach's injuries were less severe.

Mrs Hickoks, who was riding with Mrs. Hendricks, testified that the defendant had gone half way across the intersection Before turning into the Ballard road.

The plaintiffs testified that they saw nothing unusual in the manner of defendant's driving prior to the accident; that they had ridden with him Before ; and that they considered him a careful driver. The defendant himself testified that, proceeding south from Everett, he was driving 30 to 35 miles an hour; that when he came to the Ballard road he slowed down a little bit; probably to 25 miles; that he saw the lights of Mrs. Hendricks' car; that, as he turned into the Ballard road and approached the Hendricks car, his front wheels began to wobble; that he tried to swing to the right as hard as he could, 'but it was probably too late and he couldn't make it.'

John Lucich, the fourth member of the party, testified that just Before the collision, when the cars were 5 or 10 feet apart, the defendant tried to swing to the right, but it was loo late.

The case was tried to the court and jury. The jury returned verdicts in favor of the plaintiffs, after which the defendant moved for judgments notwithstanding the verdicts, and, in the alternative, for new trials. The motions for judgments notwithstanding the verdicts were granted, and the motions for new trials denied. The plaintiffs appeal.

The respondent, Elich, having died subsequent to the verdict, motions are made for an order abating the actions and dismissing the appeals. This question is, we think, disposed of by Garrett v. Byerly, 155 Wash. 351, 284 P. 343, 345, 68 A. L. R. 254. The facts in that case were that after the jury had returned a verdict in favor of the plaintiff and Before the entry of judgment, motions were made for judgment notwithstanding the verdict, and, in the alternative, for a new trial. The motions were argued and submitted to the court on December 15, 1928. The court took them under advisement, and on January 11, 1929, entered an order overruling them. Shortly thereafter, and Before the entry of formal judgment, it was brought to the court's attention that defendant had died January 6, 1929, and motion was made to abate the action on the ground that it would not survive the death of the defendant. The plaintiff moved for judgment on the verdict as of a date preceding the death of defendant. The court granted plaintiff's motion, and judgment was entered as of December 15, 1928, the day on which the motions for judgment notwithstanding the verdict and for a new trial were submitted and taken under advisement. The executors of the defendant appealed. Passing upon the issue, this court said:

'The foregoing considerations lead to the conclusion that the courts of this state have power to enter a judgment, operative nunc pro tunc, and it remains to inquire whether the case Before us presents a proper instance for the exercise of the power. The courts recognizing and applying the principle have somewhat narrowed its limitations. One of such limitations, and perhaps the most common one, is that the cause at the time of such death must be ripe for judgment. Another is that the delay in entering judgment must not have been caused by the party applying for the judgment, and still another, finding sanction in our own decisions, is that the judgment must not injuriously affect the subsequently acquired rights of innocent third persons.

'But it is uniformly held that delays caused by the party

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