Perren v. Press

• Decision Date: 08 August 1938
• Docket Number: 27140.
• Citation: 196 Wash. 14,81 P.2d 867
• Parties: PERREN v. PRESS et ux.
• Court: Washington Supreme Court

81 P.2d 867

196 Wash. 14

PERREN v. PRESS et ux.

No. 27140.

Supreme Court of Washington

August 8, 1938

Department 2.

Appeal from Superior Court, Cowlitz County; J. E. Stone, Judge.

Action by Carl H. Perren, by Christine Perren, his guardian ad litem, against William Press and wife for injuries sustained in an intersectional collision between an automobile driven by plaintiff and an automobile driven by named defendant's wife. From a judgment for the plaintiff defendants appeal.

Remanded with directions.

John F McCarthy, of Kelso, for appellants.

E. D. Germain, of Longview, for respondent.

BLAKE Justice.

This action grows out of an automobile collision which occurred in the city of Longiview, at the intersection of Oregon Way and Columbia Way. Oregon Way extends north and south, and is paved to a width of twenty feet. Columbia Way, extending from the east, terminates in Oregon Way. To the west of the intersection is a paved roadway, extending southwesterly to the north end of the Longview Columbia river bridge. This roadway is upon property owned by the bridge company. In other words, it is not a public highway, in the strict sense of the term, notwithstanding the fact that it constitutes a segment of one of the principal lines of vehicular traffic between Washington and Oregon.

The plaintiff, after coming across the bridge, was intending to go east on Columbia Way. While in the intersection, his car was struck broadside by the defendants' car, which was going south on Oregon Way, toward the Port Dock. Plaintiff brought this action to recover damages to his person and his car. The cause was tried to a jury, which returned a verdict in his favor. From judgment entered on the verdict, defendants appeal.

Appellants' assignments of error may be disposed of under three headings: (1) Sufficiency of the evidence to sustain the verdict; (2) error in the giving of an instruction and in the refusal of the court to give a requested instruction; and (3) error in entering judgment against the community and William Press personally.

First: Appellants urge that, under the evidence, respondent should be held guilty of contributory negligence as a matter of law. As was said in the recent case of Vercruysse v. Cascade Laundry Co., Wash., 74 P.2d 920, 921: 'We must, in passing upon the question * * * not only regard all competent evidence in the record which is favorable to the plaintiffs as true, but must also give [him] the benefit of every favorable inference which may reasonably be drawn from such evidence. If, when so considered the record reveals sufficient competent evidence to support the verdict, the judgment must be affirmed.'

Viewing the evidence in that light, we think the jury was warranted in finding that respondent approached Oregon Way at a rate of speed of twelve to fifteen miles an hour; that at a point about twelve or fifteen feet from the westerly edge of the pavement on Oregon Way, he slowed down a little; that appellants' car could then be observed approaching from the north along the center of the pavement at a distance of from one hundred eighty to two hundred feet from the intersection; that, without stopping, respondent quickened his speed and proceeded across Oregon Way; that after he had crossed the median line of the pavement on Oregon Way, appellants' car, veering to its left side of the pavement, struck the body of respondent's car, near the driver's seat; that at a distance of fifty to sixty feet from the intersection, appellants' car was traveling at a speed of forty to fifty miles an hour.

We are satisfied that, upon this evidence, the questions of negligence and contributory negligence were for the jury. Martin v. Hadenfeldt, 157 Wash. 563, 289 P. 533.

But appellants contend that respondent was guilty of contributory negligence as a matter of law, in that he failed to stop Before entering the intersection. This contention is predicated upon Laws of 1937, chapter 189, p. 899, § 92, which provides:

'It shall be unlawful for the operator of a vehicle to emerge from any alley, driveway, building exit, private way or private property or from off the roadway of any public highway, onto the roadway of any public highway or across a sidewalk or into the sidewalk area extending across any such alley, driveway, building exit, private way or private property without bringing such vehicle to a full stop and yielding the right of way to all pedestrians upon such sidewalk and all vehicles upon such public highway.'

Conceding, without deciding, that the statute is applicable to the situation with which we are confronted, the question as to whether or not the failure to stop contributed in any appreciable degree to the collision was for the jury, under appropriate instructions. While violation of positive law constitutes negligence, it is not actionable unless it is a proximate cause of injury. Burlie v. Stephens, 113 Wash. 182, 193 P. 684. Nor will it defeat recovery, unless it contributes in an appreciable degree to the injury. Greater Motors Corporation v. Metropolitan Taxi Co., 115 Wash. 451, 197 P. 327.

Second: The appellants obviously had the foregoing rule in mind when they proposed the following instruction, for the refusal to give which they assign error:

'You are instructed that an act done in violation of the state law is in itself negligence and that it is the duty of the party seeking damages for injuries to his person or property to prove from a preponderance of the evidence that such violation of the state law, if any, did not approximately contribute to his injury in any material degree.'

The court properly refused to give the instruction. The burden was upon the appellants to prove contributory negligence by a preponderance of the evidence. Hilstad v. Seattle, 149 Wash. 483, 271 P. 264. Included in the burden, is the element that respondent's negligence must be shown to have contributed in an appreciable degree to his injuries. Bredemeyer v. Johnson, 179 Wash. 225, 36 P.2d 1062. The fact that respondent might have been guilty of negligence, in that he violated the above quoted statute, does not affect the burden of proof with respect to contributory negligence. The burden was still upon appellants to prove that such negligence proximately contributed to respondent's injury. For, as was said in White v. Kline, 119 Wash. 45, 204 P. 796:

'Of course, it is negligence per se to operate a vehicle without complying with the positive requirements of a statute or ordinance in regard to such operation, but that does not mean that the person guilty of negligence in that respect cannot recover against some one...