Olson v. Rose, 29300.

• Decision Date: 06 September 1944
• Docket Number: 29300.
• Citation: 151 P.2d 454,21 Wn.2d 464
• Parties: OLSON v. ROSE.
• Court: Washington Supreme Court

151 P.2d 454

21 Wn.2d 464

OLSON v. ROSE.

No. 29300.

Supreme Court of Washington

September 6, 1944

Department 2.

Action by A. A. Olson against Oscar Rose for damages arising out of an automobile accident while riding in automobile as guest. From a judgment for plaintiff, defendant appeals.

Affirmed.

Appeal from Superior Court, King County; Donald A. McDonald, judge.

Henderson & McBee, of Mount Vernon, for appellant.

Carl Christophersen, of Seattle, for respondent.

MALLERY Justice.

The plaintiff brought an action for damages arising out of an automobile accident. From a judgment in favor of the plaintiff, the defendant appeals.

The parties differ in their theories of the facts. The jury was entitled to believe that, between 1:45 and 2:00 September 20, 1941, the respondent Olson was a guest in the back seat of a car owned and driven by one J. Victor Falk which left Aberdeen for Everett, Washington. They stopped at Tacoma for coffee for ten or fifteen minutes. At about 4:25 a collision occurred between the cars in which respondent was riding and one driven by appellant at a point about one hundred feet north of the intersection of the Pacific Highway and the Auburn cutoff at Webb center, which is about ninety miles from Aberdeen. The elapsed travel time was between two hours and ten minutes and two hours and thirty minutes. At the place of the collision, the Pacific highway runs north and south. It is a four-lane highway, paved with concrete, two lanes for traffic in each direction, each ten feet wide. There is a four foot gravel strip in the middle of the highway. It is straight for some distance north and south and there is a slight upward grade toward the north. The day was clear and dry.

The car in which respondent rode had been traveling at a speed of about fifty miles per hour Before it approached the intersection. It was slowed to about thirty-five miles per hour at the intersection and then speeded up again, but was still under fifty miles per hour at a point one hundred feet north of the intersection where it came into a head-on collision with appellant's car. At that point the speed limit for Falk's car was fifty miles per hour.

Appellant had been traveling south on Pacific highway. Both lanes of the highway in front of him were full of cars. He was following a car in the inside lane at a distance of about thirty-five to forty feet. He then suddenly and without warning drove his car diagonally across the gravel strip in the center of the highway and into the path of Falk's car.

Among other things, the appellant testified as follows:

'Q. Now, let us see if I have it right,--up here 200 feet from the intersection, or 100 feet from the scene of the accident you applied your brakes? A. I applied my brakes to slow down to 35 or 40 miles.

'Q. As you came down here you were going slower? A. A great deal slowed down, yes.

'Q. You applied your brakes again? A. I applied my brakes to stop. The traffic ahead of me stopped.

'Q. This car swung this way? (Indicating). A. That is the idea.

'Q. You turned your wheels so you straightened it this way? A. Yes.

'Q. When you turned your wheels the car turned around like this? A. That is the way, yes. * * *

'Q. How far away from the accident were you when your car was in this position,--facing east,--your car is facing east. How far away from the point of collision were you? A. It must have been across two pavements.

'Q. Not across two,--you said you were 40 feet away from here,--from where the collision was. * * * A. Forty feet away.

'Q. Forty feet north? A. When I turned around?

'Q. When you turned around? A. No, I was about twenty-five.

'Q. You were a little closer then? A. Yes.

'Q. When the car was in this position it was stopped? A. Yes, it was stopped.

'Q. Practically stopped? A. Yes, practically stopped.

'Q. You stepped on the gas? A. No, I did not step on it. I just turned the wheel around. * * *

'Q. Both lines of traffic were full of cars? A. Yes, they were.

'Q. How close was the closest car? A. 35 or 40 feet.

'Q. In front of you? A. Yes.

'Q. You said traffic slowed down? A. Yes.

'Q. As you proceeded, I suppose traffic moved ahead out of the intersection? A. They came to a stop. Then I applied my brakes.'

Later on, Rose testified as follows:

'Q. You turned the wheel and the car responded? A. Yes.

'Q. When you turned it around you had it under control? A. Yes.

'Q. Before you headed across the gravel strip you had the car under control? A. Well, I----

'Q. Yes or no. Did you have the car under control? A. Yes, it was.

'Q. It was not skidding then? A. No, it was not skidding then.

'Q. You had the car under control? A. Under control.

'Q. You said when you crossed this gravel strip and headed this way you were going ten miles an hour. A. No, I said around 10 or 12.

'Q. How fast were you going? A. Going about 10 or 12 miles across the pavement.

'Q. Did you put on the brakes then? A. No, I was going to cross. * * *

'Q. When you first saw Mr. Falk you were going south. A. I was not going south but I was faced that way.

'Q. Where was he. A. He was down below the blinker light.

'Q. When you saw Mr. Falk you left your side of the highway and turned in front of him and headed for the ditch. A. Yes.

'Q. At that time the car was not skidding? A. No, not when I headed for the ditch.

'Q. How fast was the Falk car coming? A. 50 or 60 miles an hour.'

The appellant presents his assignments of error under six headings. Under the first heading, appellant claims the court's instruction No. 6 was erroneous.

We quote his contention:

'In this instruction, the court limited the negligence of the driver, Falk, to the sole and only question of the speed at the point of the collision, and thereby limited the contributory negligence of the respondent, Olson, which had been charged in general terms, to that one act of negligence, speed at the point of the collision.'

The theory of the appellant as alleged in his answer was that the respondent was negligent in failing to exercise proper control over the operation of the automobile in which he was riding. His version of the facts were that the Falk car was driven at an excessive rate of speed not only at the point of collision, but also all the way from Aberdeen to that point. His theory of the law is that the respondent should have made objections to the driver about the manner of driving, not only at the point of collision, but prior thereo.

He supported his version of excessive speed all the way from Aberdeen by certain mathematical computations based upon the distance traveled and the elapsed travel time. He argues that he was entitled to have the jury instructed to consider the speed, and the respondent's obligation to warn the driver about it, previous to the time of the collision. With this theory we do not agree. The evidence with regard to the previous speed was material and therefore admissible for the very limited purpose of affecting the credibility and accuracy of the testimony touching the speed of the automobile at the time of the collision. It may be conceded that a jury might well be affected in their finding upon that question by the previous conduct of the parties, but the fact still remains that they were only called upon to determine the question of speed at the time of the collision, even though they had a right to consider previous rates of speed as a circumstance among others as worthy of some consideration in arriving at their finding.

This evidence was all Before them and it must be presumed that they gave that factor the weight to which they deemed it to be entitled. It would have been error to have gone further in the matter by instructing them that they should find that excessive speed at a time prior to the collision would constitute negligence at the time and place of collision.

Under his second heading, appellant contends that the court erred in giving instruction No. 8 in which the jury were told that the driver upon the wrong side of the highway has the burden...