Potts v. Laos

• Decision Date: 26 November 1948
• Docket Number: 30640.
• Citation: 200 P.2d 505,31 Wn.2d 889
• Parties: POTTS v. LAOS et al.
• Court: Washington Supreme Court

200 P.2d 505

31 Wn.2d 889

POTTS v. LAOS et al.

No. 30640.

Supreme Court of Washington

November 26, 1948

Department 1

Action by Jerome A. Potts against Dennis Laos and Nellie Laos husband and wife, for personal injuries and property damage sustained in a motorcycle-automobile collision. From an order granting plaintiff motion for a new trial, defendants appeal.

Order affirmed.

Appeal from Superior Court, Spokane County; Louis F. Bunge, judge.

H. Earl Davis, of Spokane, for appellants.

Harvey Erickson and Frank R. Freeman, both of Spokane, for respondent.

STEINERT Justice.

This was an action for damages for personal injuries and property impairment resulting from a collision between a motorcycle operated by the plaintiff and a passenger automobile driven by one of the defendants. The action was tried to a jury which returned a verdict in defendants' favor. The court granted plaintiff's motion for a new trial, and from an order embodying that ruling defendants have appealed.

The accident out of which this action arose occurred April 28 1947, at about 1:30 p. m., within or in close proximity to the intersection of Third avenue and McClellan street, in the city of Spokane. Third avenue is an arterial highway extending in an easterly-westerly direction. McClellan street, extending in a northerly-southerly direction, intersects Third avenue at right angles. Both streets are fifty-one feet wide, from curb to curb.

At the time of, and immediately Before , the accident, a line of cars stood parked along each side of Third avenue, east of the intersection, although on the north side the line did not extend all the way to the east pedestrian lane of McClellan street. At that same time, the employees of a building mover, by use of a truck and certain mechanical devices called dollies, were transporting a gasoline service station eastwardly along Third avenue. This service station was twenty-four feet wide and thirty feet long, and was being towed lengthwise. The truck and front end of the service station had passed beyond the east pedestrian lane of McClellan street, but the rear end of the station was still some distance within the limits of the intersection, such distance being variously estimated at from four to twenty-five feet. As this combination of truck and service station proceeded across the east pedestrian lane of McClellan street, its right-hand side was kept as near the south curb of the avenue as the line of parked cars on that side would permit. Owing to the width of the station and the two lines of parked cars, a space of only ten or twelve feet, on the north side of Third avenue, was left for traffic. The weather at the time was clear and the pavement was dry.

On April 28, 1947, the day of the accident, respondent, Jerome A. Potts, was, and for four or five years prior thereto had been, a motorcycle policeman in the employ of the city of Spokane. At about 1:15 p. m., on that day, he was on duty, with his motorcycle, in the vicinity of Third avenue and Arthur street, which is fifteen blocks east of the intersection of Third avenue and McClellan street. His motorcycle was equipped with a radio for receiving calls, also with a white light, two red lights, and a siren which was operated by means of a hand lever. While thus engaged upon his duties, respondent received several successive messages from police headquarters that a fire had broken out at Second avenue and Lincoln street, which is seven blocks west end one block north of the intersection of Third avenue and McClellan street, and his instructions were to go immediately to the scene of the fire. He at once started in that direction, driving his motorcycle westwardly along Third avenue toward McClellan street. His testimony was that while traversing that course his red lights were flashing and his siren was sounding.

The statutes of this state, as well as the traffic ordinances of the city of Spokane, provided that upon the immediate approach of an authorized emergency vehicle, giving audible signal by siren, exhaust whistle, or bell, the driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel, and as close as possible, to the right-hand edge or curb of the public highway, clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a peace officer. The particular city ordinance further provides, however, that the operator of an authorized emergency vehicle is not relieved of the duty to operate with due regard for the safety of all persons using the highway, but, despite the right of way provision of the ordinance, shall remain liable for the consequences of operating such vehicle in reckless disregard for the safety of others.

Respondent testified that the speed of his motorcycle, as he approached the intersection of Third avenue and McClellan street, was twenty-five or thirty-five miles an hour. In this he was corroborated by a number of disinterested witnesses, who also testified that his siren had been sounding for several blocks. One of these witnesses, a truck driver, in obedience to the sound of the siren, drew his truck alongside the curb of Third avenue near McClellan street and stopped; likewise, the driver of the truck which was hauling the gasoline service station brought the truck and service station to a stop as near the curb as was possible.

In the meantime, appellant Dennis Laos, who will hereinafter be referred to as though he were the sole appellant, was driving his 1940 Ford sedan eastwadly along. Third avenue toward McClellan street, in the direction from which respondent was approaching on his motorcycle. It is not entirely clear from appellant's testimony whether he intended, after crossing the intersection to continue eastwardly along Third avenue, or whether he intended to turn to the left, in the intersection, and proceed north along McClellan street.

The substance of his testimony regarding the events immediately prior to the accident was that in proceeding across the intersection, along the south side of Third avenue, he came up behind the building which was being moved eastwardly and directly ahead of him; that he stopped or slowed down his automobile, looked forward to see whether any traffic was coming from the east and listened to hear any siren that might be sounding. Seeing no one directing traffic around the moving building and hearing no siren, he veered to his left and proceeded slowly forward in a northeasterly direction, intending, apparently, to go around the towed building, on its north, or left-hand, side. As indicated above, the building was then occupying all the available space on the south half of Third avenue and a part of the space on the north half. When appellant's car reached a point near the northwest corner of the service station, he for the first time saw the red lights of respondent's motorcycle, which he estimated was only about sixty feet distant from him and traveling directly toward him at a speed of forty-five or fifty miles an hour. At that same instant, he also for the first time heard the siren of the motorcycle. His estimate of respondent's speed was corroborated by the testimony of several witnesses.

Appellant continued forward slowly in a northeasterly direction, thus exposing the right-hand side of his automobile to traffic coming from the east and, for the time being, almost completely blocking the way of such traffic proceeding through the narrow corridor leading into the intersection.

A traffic ordinance of the city of Spokane provides that it shall be unlawful for any person to pass any overtaken vehicle unless he shall have a clear and unobstructed view ahead for a distance sufficient for safe passing, all factors considered. Another ordinance provides that no vehicle shall overtake and pass, or attempt to pass, another vehicle at a street intersection, except by direction of a traffic officer. The trial court instructed the jury in accordance with each of the ordinances referred to herein.

At about this same time, respondent, approaching on his motorcycle, for the first time saw appellant's automobile when it was approximately sixty or seventy feet directly ahead of him. Respondent immediately applied his brake and endeavored to bring his machine to a stop, but was unable to do so. Instead, the notorcycle skidded, traveling sideways...