Portland-Seattle Auto Freight, Inc. v. Jones

• Decision Date: 07 December 1942
• Docket Number: 28668.
• Citation: 131 P.2d 736,15 Wn.2d 603
• Court: Washington Supreme Court
• Parties: PORTLAND-SEATTLE AUTO FREIGHT, Inc., v. JONES.

131 P.2d 736

15 Wn.2d 603

PORTLAND-SEATTLE AUTO FREIGHT, Inc., v. JONES.

No. 28668.

Supreme Court of Washington, En Banc.

December 7, 1942

Action by Portland-Seattle Auto Freight, Inc., against Vernita Jones in her individual capacity and as administratrix of the estate of Virgil Jones, deceased, to recover damages to a truck caused in an automobile collision wherein defendant filed a cross complaint. From an order granting defendant's motion for a new trial plaintiff appeals.

Affirmed.

Appeal from Superior Court, Pierce County; Mallery, Judge.

Bruce Bartley and Max R. Nicolai, both of Seattle, for appellant.

Binns &amp Cunningham, of Tacoma, for respondent.

SIMPSON Justice.

Plaintiff instituted this action in the superior court to recover judgment for damages to its motor truck caused in an automobile collision.

The complaint charged that plaintiff's truck was damaged through the negligence of Virgil Jones, now deceased, who was the driver of the Packard coupe just Before and at the time of the accident.

The charges of negligence were in operating the car with more than three persons in the front or operator's seat, in driving at a rate of sixty miles per hour, and in driving the vehicle in a negligent manner in reckless disregard of the rights of other users of the highway, particularly the plaintiff.

A demurrer to the complaint in so far as the estate of Virgil Jones was concerned was sustained by the trial court.

Defendant, in her individual capacity and as administratrix of the estate of Virgil Jones, deceased, filed her answer in which she denied negligence on the part of Virgil Jones, and in a cross-complaint alleged that the accident was caused by the negligence of the driver of plaintiff's truck. The charges of negligence were in driving a truck on the wrong side of the street, in turning the truck to the left Before it had reached the street intersection, the failure to give a signal of an intention to turn, and in driving the truck across the rightful course of the car driven by Virgil Jones.

The cause was tried to a jury and a verdict rendered in favor of defendant in her individual capacity without damages and a verdict without damages in her favor as administratrix of the estate of Virgil Jones, deceased.

Subsequent to the return of the verdict defendant presented a motion asking for a new trial on the ground that the court had erroneously given instructions Nos. 6, 9 and 20. The motion was granted by the trial court. Plaintiff appealed and has assigned as error the granting of the motion for a new trial.

The accident occurred in Tacoma at about 11 p.m. August 30, 1940 at a point south of the intersection of Pacific avenue and 19th street. Pacific avenue, one of the main traveled streets of the city of Tacoma, runs in a northerly and southerly direction. 19th street on the west side intersects Pacific avenue, but does not extend east thereof. Both streets were paved. At the time of the accident there was a double street car track in Pacific avenue so laid that the approximate center of the avenue was that portion lying between the north and south bound tracks. At the time of the accident the pavement was dry, the night clear, and the street lights were burning. Appellant's truck was being driven in a northerly direction close to the west side of the easterly car tracks. Respondent's coupe was driven in a southerly direction by Virgil Jones. Seated next to him was his wife Vernita Jones. To her right sat Mr. Bernard holding Mrs. Bernard on his lap. Pictures introduced in evidence demonstrated that the right front corner of the truck and the left front corner of the coupe came into contact.

The evidence relating to the cause of the accident and the actions of the different parties was in hopeless conflict. Appellant's evidence showed that the truck was traveling at a speed of twenty or thirty miles per hour on its own side of the street; that some time Before reaching 19th street the driver drove the truck near to the center of the street and, by automatic signal situated on the left front side of the truck, gave the signal of his intention to turn to his left into 19th street, but had not yet turned when struck by respondent's car.

Appellant's evidence further showed that respondent's coupe came from the north on the wrong side of the street, traveling at a rate of fifty miles per hour, and collided with the right front portion of the truck.

The evidence produced by respondent presented the following facts. That four people were riding in the front seat; that the coupe was being driven by Virgil Jones in a southerly direction on the western portion of Pacific avenue at a speed of not to exceed twenty-five miles per hour; and that when respondent's coupe was within fifteen or twenty feet of the truck it suddenly turned to its left in front of the coupe, thus causing the collision. As one witness put it, in speaking of the movement of the truck, 'It started easing towards over to get in the tracks, and then made a sort of a short turn * * *. Sort of a left turn.'

During the trial the jury viewed the scene of the accident.

Instruction No. 6 read as follows: 'In this connection I instruct you that a person who, at the time of an accident, is engaged in the violation of a positive law, has the burden of proving by clear, cogent and preponderance of the evidence that such violation did not in any way contribute to cause such accident.'

This instruction of course was given to apply to the drivers of both vehicles, each of whom was charged with violation of traffic regulations.

Statutes or municipal ordinances prescribing the rules of traffic establish rules of conduct which must be obeyed. They are standards for testing negligence and contributory negligence.

The rule in this state is that a violation of those rules constitutes negligence per se.

In Johnson v. Heitman, 88 Wash. 595, 153 P. 331, 332, Judge Ellis, speaking for the court, stated:

'This court is definitely committed to the rule that 'a thing which is done in violation of positive law is in itself negligence,' in the absence of pleading and proof of such peculiar facts as would tend to justify the violation. Engelker v. Seattle Elec. Co., 50 Wash. 196, 96 P. 1039; Wilson v. Puget Sound Elec. Ry., 52 Wash. 522, 101 P. 50, 132 Am.St.Rep. 1044; Hillebrant v. Manz, 71 Wash. 250, 128 P. 892; Anderson v. Kinnear, 80 Wash. 638, 141 P. 1151.

'In consonance with that rule this court, in common with others, has repeatedly held that, in the absence of evidence of circumstances tending to excuse by making such a course reasonably necessary, a failure to observe the law of the road, resulting in injury, is negligence as a matter of law.'

'It is settled law in this state that 'a thing done in violation of positive law is in itself negligence.'' Twedt v. Seattle Taxicab Co., 121 Wash. 562, 210 P. 20, 21.

Accord, Snyder v. Smith, 124 Wash. 21, 213 P. 682; Sliter v. Clark, 127 Wash. 406, 220 P. 785; Benson v. Anderson, 129 Wash. 19, 223 P. 1063; Geitner v. Stephenson, 137 Wash. 464, 242 P. 1099; Keller v. Breneman, 153 Wash. 208, 279 P. 588, 67 A.L.R. 92; Price v. Gabel, 162 Wash. 275, 298 P. 444.

The question of whether one who at the time of an accident is engaged in the violation of positive law has the burden of showing that the violation did not contribute to the injury has been the subject of discussion in many of our cases.

In Segerstrom v. Lawrence, 64 Wash. 245, 116 P. 876, 877, this court called attention to the provisions of the statute requiring drivers to 'seasonably turn to the right of the center of the way when passing another vehicle going in the opposite direction' and then stated: 'There is a 'law of the road' also arising from usage and custom which requires persons traveling upon a continuously used street or highway to keep upon the right side of such way. These are regulations to avoid collisions, and the one who neglects it and collides with another usually has the burden of explaining his conduct.'

In speaking of the rule relative to driving and turning to the left side of the street, this court stated in Burlie v Stephens, 113 Wash. 182, 193 P. 684, 686: 'Complaint is made of instruction No. 14, to the effect that the burden of proving a violation of an ordinance of the city was upon the plaintiff, and that even if the driver of the automobile did violate the ordinance, such violation would not constitute negligence, upon which recovery could be had, 'unless the act which constituted the violation of the ordinance was the proximate cause of the injury,' and that if the jury believed that the driver of the automobile turned it from the right to the left side of the street in violation of the ordinance, but did so in an emergency, and in an effort to avoid an injury, then such violation would not constitute negligence. This instruction does nothing more than to inform the jury that the mere fact, if it should be such, that Ligman turned his automobile to the left side of the road in violation of the ordinance and statute, that fact alone would not be sufficient to make respondents liable in damages, and that whether in so doing the driver was guilty of negligence approximately causing the injury would depend upon the circumstances and the reasons existing at the time. We have no doubt that this is a correct statement of the law. Circumstances may arise where it is entirely proper, in the exercise of reasonable care, to violate the ordinance by turning an automobile to the wrong side of the street. The mere fact that the automobile may be on the wrong side of the street at the time of the collision is not conclusive of negligence, because the driver of the automobile had a right to show why he...