Pomikala v. Cartwright, 24108.

• Decision Date: 17 November 1932
• Docket Number: 24108.
• Citation: 170 Wash. 192,16 P.2d 204
• Parties: POMIKALA et al. v. CARTWRIGHT.
• Court: Washington Supreme Court

16 P.2d 204

170 Wash. 192

POMIKALA et al. v. CARTWRIGHT.

No. 24108.

Supreme Court of Washington

November 17, 1932

Department 2.

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Azeal Pomikala and another against Maude Cartwright and B W. Steely. At the conclusion of the testimony, the action was dismissed as to defendant B. W. Steely. Judgment for plaintiffs, and the first-named defendant appeals.

Affirmed.

F. A. Latcham, of Tacoma, for appellant.

L. B Sulgrove and Bartlett Rummell, both of Tacoma, for respondents.

MAIN J.

The plaintiffs brought this action to recover damages for personal injuries, and also property damage. The cause was tried to the court and a jury. At the conclusion of the testimony, the action as to the defendant B. W. Steely was dismissed. The jury returned a verdict in favor of the plaintiffs, and against the other defendant Maude Cartwright in the sum of $3,000. Motions were made for judgment notwithstanding the verdict, and, in the alternative, for a new trial; both of which motions were overruled and judgment was entered upon the verdict, from which Mrs. Cartwright appeals.

The collision between two automobiles took place near the intersection of South 80th street and South Sheridan avenue in the city of Tacoma, November 4, 1931, at about 10 o'clock a. m. South 80th street extends east and west, and Sheridan avenue north and south. The northwest corner of the intersection is rounded, as is also the northeast. On the property adjoining this curve at the northwest is a five-foot bank. South 80th street, as it approaches the intersection, is downgrade. Neither street was paved, but both were graveled to the width of about twenty feet. To the south of the intersection, South Sheridan street was not graveled, but there was what was referred to as a trial which could be used by automobiles.

The respondents were proceeding east on South 80th street in a Pontiac sedan, at a speed of about twenty-five miles per hour, until they neared the intersection, when the automobile was slowed down to seven or eight miles per hour. As the appellant approached the intersection, she turned to the right to go west on South 80th street. At or near the intersection, the left front of the appellant's car collided with the left rear of the car of the respondents, which at the time was being driven by Mr. Pomikala, After the collision, the Hudson automobile crossed the street to the south, the Pontiac crossed to the southeast corner of the intersection where it turned over, and Mrs. Pomikala suffered the injuries for which recovery is sought in this action.

The testimony as to the relative position of the two cars at the time of the collision is directly in conflict. The respondents both testified that they were to the south of the center of South 80th street, and were on their right-hand side of the road. The appellant testified that she was on her right-hand side of the road, and that the Pontiac car approached in the center of the road, with its left side over the center line. Neither driver saw the other until almost the instant of impact.

It is first contended that the court erred in not sustaining the appellant's motion for judgment notwithstanding the verdict, either on the ground that there was no negligence or that the driver of the Pontiac was guilty of contributory negligence. If the facts, as testified to by the respondents are true the appellant, as she rounded the curve, made a wide swing and was over the center line of the highway, and the car of the respondents was on its right-hand side, with ample space for the appellant to have passed on her right-hand side, if she had been there. The appellant says, as already indicated, that she was on her right-hand side, and that it was the Pontiac that was over the center on her side of the road. This presented, concretely, a question of fact for the jury to determine. The appellant, however, says that, under the situation as it is presented in this case, the testimony...