Quayle v. Knox

• Decision Date: 23 November 1933
• Docket Number: 24760.
• Parties: QUAYLE v. KNOX.
• Court: Washington Supreme Court

27 P.2d 115

175 Wash. 182

QUAYLE v. KNOX.

No. 24760.

Supreme Court of Washington

November 23, 1933

Department 1.

Appeal from Superior Court, King County; Chester A. Batchelor Judge.

Action by Blanche Quayle against Bessie Knox. Judgment for plaintiff, and defendant appeals.

Affirmed.

Pearson & Potts and Wm. D. Askren, all of Seattle for appellant.

Padden & Moriarty, of Seattle, for respondent.

STEINERT Justice.

This is an action to recover damages for personal injuries sustained in an automobile collision. Upon a trial Before the court and jury, a verdict was rendered for plaintiff. From a judgment on the verdict, defendant has appealed.

The accident occurred on the Pacific Highway between Seattle and Tacoma, on September 27, 1931, at about 8 o'clock in the evening. The parties to this action were personal friends. Appellant had invited respondent to accompany her on an automobile trip from Seattle to Tacoma. On the return appellant's car ran into another car traveling north, the direction in which appellant was driving. As a result of the collision, appellant's car skidded into a ditch along the left side of the road and came to a stop at a point variously estimated between 55 and 120 feet from the place where the collision occurred; the other car was thrown forward about 80 feet and turned over on its side upon the road. The occupants of both cars were injured; the respondent quite seriously. Other details will appear as we proceed.

Under the intitial group of assignments of error appellant makes the contention that respondent was guilty of contributory negligence, as a matter of law, barring a recovery by her. The evidence of respondent on this phase of the case was as follows: Back of a point about 900 feet from the scene of the accident, appellant was driving in the center of the road and at a speed of from 35 to 40 miles per hour. Two boys, driving another car, were following appellant and were honking their horn in an endeavor to pass. Appellant refused to give way until respondent requested her to pull over to the right. As the boys passed the appellant they continued honking their horn. This seemed to nettle appellant and she at once speeded up to overtake them. Respondent cautioned her not to go so fast, suggesting that it was not necessary to do so, inasmuch as they were not in a hurry. Appellant replied that no one could pass her and 'get away with it.' Appellant thereupon increased her speed and maintained it at a rate of approximately 65 miles per hour until the time of the collision. Respondent protested, saying that she did not want to go so fast; her protest, however, was without avail. At about the same time respondent observed another car entering the highway from the left and turning north in front of appellant's car about 380 feet ahead. Respondent immediately told appellant to be careful, that there was a car crossing the road. Appellant, however, ignored the caution and kept on at the same rate of speed. Almost immediately thereafter the collision occurred.

Appellant admits that there was a sufficient showing of gross negligence on her part to make that question one for the jury. She contends, however, that respondent should have insisted that appellant either slow up or else stop the car and permit respondent to get out. It seems to us that respondent did all that she was called upon to do under the circumstances. There is no sot formula or magic password that a guest must utter in order to absolve himself of contributory negligence. One riding with another in an automobile must exercise ordinary care for his safety, and whether he does exercise such care depends upon whether he has acted as a reasonably prudent person would have done under like or similar circumstances. Sanderson v. Hartford Eastern Railway Co., 159 Wash. 472, 294 P. 241; White v. Stanley, 169 Wash. 342, 13 P.2d 457. Under the evidence in this case, it was a question to be determined by the jury whether respondent had used ordinary care under the circumstances.

The next assignment of error is based upon the court's refusal to admit a certain photograph in evidence. Appellant had offered two photographs of the car that was struck by appellant's car. Neither photograph, however, was sufficiently identified as showing the condition of the car immediately after the accident, but merely as showing its condition some months later. The court admitted one of the photographs, on the ground that respondent's counsel had rendered it admissible by cross-examining thereon and by repeatedly referring to it. The court refused to admit the second photograph, on the ground that it had not been sufficiently identified, but offered to permit appellant to complete the identification. This, however, was not done. Whether a photograph is sufficiently identified as a proper representation is a preliminary question to be determined by the trial judge, and the determination of that question lies largely within his discretion; his ruling thereon will not be disturbed except for abuse of discretion. Haven v. Snyder, 93 Ind.App. 54, 176 N.E. 149; Bruce v. Hanks, 277 Mass. 268, 178 N.E. 728; Trexler Lumber Co. v. Allemannia Fire Ins. Co., 289 Pa. 13, 136 A. 856; Gose v. True, 197 Iowa, 1094, 198 N.W. 528. We find no abuse of discretion in the court's ruling upon this question.

The appellant next assigns as error the refusal of the court to admit in evidence a written statement made by one of respondent's witnesses shortly after the accident. The witness had testified upon direct examination that appellant's car had traveled 120 feet after the impact. In his written statement, he had fixed the distance at 55 feet. Upon cross-examination, the witness at first denied that he had previously fixed the distance at 55 feet, but on being shown the written statement, he admitted that that was what he had said at the time of giving the...