Oliver v. Taylor

• Decision Date: 17 March 1922
• Docket Number: 16961.
• Court: Washington Supreme Court
• Parties: OLIVER et al. v. TAYLOR et al.

205 P. 746

119 Wash. 190

OLIVER et al. v. TAYLOR et al.

No. 16961.

Supreme Court of Washington

March 17, 1922

Department 2.

Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge.

Action by Carrie A. Oliver and husband against E. R. Taylor and another, copartners, doing business as the Independent Truck Company. Judgment for plaintiffs, and defendants appeal. Affirmed.

Roberts & Skeel and N. A. Pearson, all of Seattle, for appellants.

Cooley Horan & Mulvihill, of Everett, for respondents.

HOVEY J.

This is an action for personal injuries sustained by respondent Carrie A. Oliver from a truck belonging to appellants. The case was tried to a jury which rendered a verdict for $4,000 and from the judgment upon this verdict this appeal is prosecuted.

The first question raised is the sufficiency of the testimony to sustain any recovery whatever.

The accident occurred in the city of Everett at the intersection of California and Lombard streets. California street runs east and west and is 52 feet wide between curbs. Lombard street runs north and south and is 40 feet between the curbs. There is a sewer manhole in the center of the intersection of these streets. Counsel have supplied the court with an excellent map drawn on a large scale. The point on the north side of California street about 10 feet from the east line of the intersection and near the curb in indicated by the letter 'B.' A point about five feet south of the manhole in the center of the intersection is indicated by the letter 'E.' The truck belonging to appellants weighed 4,100 pounds and was operated by a driver 18 years of age who had with him in the seat two young ladies. He was traveling west on California street at a speed estimated by him at 12 miles per hour. At point 'E' he could and did see across on Lombard street for a distance of 60 feet from the intersection where a Ford car operated by one Frolich was approaching the intersection at a high rate of speed. From the point 'B' the driver of the truck veered to his left, and, according to the witnesses for the plaintiff pursued a straight course diagonally across the intersection without slackening speed to the point 'E.' The Ford continued in a straight course to the south and struck the rear end of the truck on the latter's right hind wheel. The rear of the truck then whirled to its left and its end gate overlapped the sidewalk at the southwest corner of the intersection and struck the plaintiff, who had just crossed the street from the north to the south side of California street and who was in view of the driver of the truck from the time she reached the center of the street in crossing it.

There is much less controversy in the testimony than is usual in cases of this kind. The driver of the truck admits that he pursued substantially the course claimed by the plaintiff and that to avoid the Ford he commenced angling before he ever entered the intersection; he further says that he speeded up the truck towards the last to avoid the collision. He admits that he made no effort to stop the truck, although he testified in one place he could stop it at this speed in the distance of 10 feet. This statement he afterwards qualified with respect to a slippery pavement. It is undisputed that the pavement was slippery and that it was a rainy afternoon.

The main contention of appellant seems to be that the truck was first in the intersection and had the right of way and that the driver did all that he could to avoid the injury. The evidence indicates that the primary negligence was that of the driver of the automobile, but we think the jury were fully justified in concluding that the driver of the truck was also negligent. There was testimony on behalf of plaintiff that if the truck had proceeded straight across the...