Ritter v. Johnson

• Citation: 300 P. 518,163 Wash. 153
• Decision Date: 22 June 1931
• Docket Number: 23072.
• Parties: RITTER et ux. v. JOHNSON.
• Court: United States State Supreme Court of Washington

300 P. 518

163 Wash. 153

RITTER et ux. v. JOHNSON.

No. 23072.

Supreme Court of Washington

June 22, 1931

Department 2.

Appeal from Superior Court, King County; James B. Kinne, Judge.

Action by Gottfried Ritter and wife against Fairold L. Johnson. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Roberts Skeel & Holman and Frank Hunter, all of Seattle, for appellant.

H. G. &amp Dix H. Rowland and Stuart H. Elliott, of Tacoma, and H. E Donohoe, of Chehalis, for respondents.

BEALS J.

This litigation is the result of an automobile accident which occurred about 5 o'clock in the afternoon July 3, 1929, at a point on the Pacific Highway approximately five miles south of the city of Chehalis. The concrete pavement, which is twenty feet in width, was dry, the road was level and straight, and comprised, in addition to the paved portion thereof, a dirt shoulder about ten feet wide on each side of the pavement. Two was were proceeding north; the first a Hudson coupé, operated by S. G. Fake, in which were also riding Mrs. Fake and another lady, two children occupying the rumble seat. Following the Fake car at a distance of approximately two car lengths came defendant F. L. Johnson, driving his Hupmobile.

The south-bound procession was headed by plaintiff Gottfried Ritter in his Dodge, accompanied by his wife; next come C. W. Guerrier in his Hudson brougham, with whom was riding his thirteen year old nephew; followed in turn by R. G. Kittleson, driving a Ford truck upon which had been erected a crate suitable for hauling cattle. The cars were traveling at an average speed of about thirty-five miles an hour. Mr. Fake suddenly put on his brakes, slowed and stopped his car. Mr. Johnson, in order to avoid crashing into the Fake car, which was immediately ahead of him, turned to his left in an endeavor to cross the road on to the west shoulder. He was unable to escape the car driven by Mr. Ritter, which struck the Johnson car on its right side. The Guerrier Hudson and the Kittleson truck were unable to stop and continued on into the wreck. The owners of these two latter cars assigned their claims to plaintiff, who instituted this action to recover damages suffered by himself and wife, as well as by his assignors, claiming that the accident was caused by the negligence of defendant. Mr. Johnson denied all negligence on his part, pleaded that the accident was caused by the carelessness of a third party, over whom defendant had no control, and that plaintiffs and their assignors were guilty of contributory negligence.

The action was tried to the court sitting without a jury, and resulted in judgment in plaintiffs' favor upon their own cause of action in the sum of $3,973.50, and in the sum of $75, as assignees of Mr. Kittleson. No recovery was allowed plaintiffs as assignees of Mr. Guerrier. From this judgment defendant appeals.

At the close of the case, the court dictated a memorandum opinion, which is contained in the statement of facts now before us, stating that in the opinion of the court the accident was caused by the negligence of Mr. Guerrier in endeavoring to pass the respondents' car, and that Mr. Guerrier, by leaving the line of traffic and entering upon his left-hand side of the road, caused Mr. Fake, in order to avoid a collision, to turn his car somewhat to his right and stop. In the opinion of the court as then expressed, appellant, because of the sudden stopping of the Fake car, was confronted with a sudden emergency, and was not in law guilty of negligence in turning to his left in order to avoid striking the car just ahead of him. The court stated that the wrong man had been sued, and that the action would be dismissed. After this oral pronouncement by the court, respondents filed a motion for judgment in their favor notwithstanding the oral decision, or in the alternative for a new trial. After further proceedings, no findings of fact having been entered, the court filed a memorandum decision, stating that he was satisfied with the r esumé of the facts which he had before dictated, but that he had changed his opinion as to the law, and that he concluded, under certain decisions of this court referred to in the opinion, that appellant had been guilty of negligence and should be held liable to respondents. Pursuant to this decision, formal findings of fact and conclusions of law were signed, and judgment entered in respondents' favor.

Appellant first contends that the court erred in entering judgment in respondents' favor, having once orally announced a decision in appellant's favor to the effect that the action would be dismissed. No judgment having been entered, the court was at liberty to change its ruling, and no error can here be predicated upon the fact that such change was made. Landry v. Seattle, etc., Co., 100 Wash. 453, 171 P. 231; Quigley v. Barash, 135 Wash. 338, 237 P. 732.

Mr. S. G. Fake, testifying as a witness on behalf of appellant, stated that late in the afternoon on the day of the accident he was traveling north on the Pacific Highway four or five miles south of the city of Chehalis. With him in the car were Mrs. Fake, another lady, and two children. The witness stated that several cars were approaching proceeding south, and that one car pulled out of the line of traffic in an attempt to pass the car ahead, and came down the center of the roadway at a rapid rate. Mr. Fake testified that he 'started to slam on the brakes, get off the road and let him get by.' Mrs. Fake testified to the same effect.

Appellant testified that at the time of the accident he was driving his Hupmobile north on the Pacific Highway; his wife and baby riding in the car with him. Appellant stated that he was following Mr. Fake's car, and noticed that two children were riding in the rumble seat; that...