Rowe v. Dixon

• Decision Date: 16 July 1948
• Docket Number: 30442.
• Citation: 196 P.2d 327,31 Wn.2d 173
• Parties: ROWE et ux. v. DIXON et al.
• Court: Washington Supreme Court

196 P.2d 327

31 Wn.2d 173

ROWE et ux. v. DIXON et al.

No. 30442.

Supreme Court of Washington

July 16, 1948

Department 2

Action by Charles A. Rowe and Alma M. Rowe, husband and wife against Hal R. Dixon and others, copartners, doing business under the assumed name and style of Lincoln Lumber Company and William Simms for personal injuries sustained in motor vehicle collision. From a judgment for plaintiffs for $6,317.50, the defendants appeal.

Appeal from Superior Court, Spokane County; Carl C. Quackenbush judge.

H. Earl Davis, of Spokane, for appellants.

Thomas I. Oakshott, of Colville, and Hamblen, Gilbert & Brooke, of Spokane, for respondents.

BEALS Justice.

Plaintiffs in this action, Charles A. and Alma M. Rowe, husband and wife, during the year 1946 were residing at Inchelium, in Ferry county. Mr. Rowe owned a small farm eleven miles northwest of his home, the farm being near the Hall Creek road, a public highway. Mr. Rowe made very frequent trips from his home to the farm, using a 1936 Ford pickup truck with a cab.

The defendants Hal R. Dixon and Eve L. Dixon, husband and wife; M. Gale Beals and Marie D. Beals, husband and wife; Harold E. Carman and Frances E. Carman, husband and wife; Grant Dixon, Jr., and Grace M. Dixon, husband and wife; E. W. Abrams and Dorothy Abrams, husband and wife; Lester C. Farrish and Marjie S. Farrish, husband and wife; and Grant Dixon, Sr., were copartners, under the firm name of Lincoln Lumber Company, engaged in conducting extensive logging operations in Ferry county. The partnership maintained a camp on the west side of the Hall Creek road. Defendant William Simms was employed by the partnership as driver of a logging truck.

At about five o'clock on the afternoon of July 25, 1946, plaintiffs left their home for the farm, for the purpose of carrying feed to their stock. As the plaintiffs rounded a sharp right-hand curve in the road, they met a heavy logging truck, owned and operated by defendant partners, which was then driven by the defendant Simms, and which was proceeding in the opposite (southeasterly) direction. Plaintiffs' truck and defendant partners' logging truck collided, with the result that plaintiffs suffered serious injuries, and, thereafter, instituted this action against defendants, demanding damages in the total sum of $9,567.50.

In their amended complaint, plaintiffs alleged that the injuries which they sustained were the result of the negligence of the defendants in the following particulars:

'(a) In operating their said truck at said time and place with an outside width of more than 8 feet as limited by law, to-wit: a width of approximately 10 feet;

'(b) In operating said truck over a road at point of accident the travelled portion of which was only 15 feet wide so that said truck occupied more than half of the travelled portion thereof;

'(c) In operating said truck over said road at the point of accident so that a portion thereof extended over the centerline of said road, and so as to obstruct and/or interfere with approaching traffic, and particularly to leave insufficient room for plaintiffs to safely pass said truck; and

'(d) In operating said truck around a curve and near the point of accident, without giving any signal or warning to approaching traffic, and particularly to plaintiffs.'

The defendants, including defendant Simms, answered, admitting the existence of the copartnership; that the defendant Simms was in the employ of the copartnership as a logging truck operator, and denying the other allegations contained in the complaint. By their answer, defendants pleaded contributory negligence on the part of plaintiffs, and that plaintiffs, in using the highway, had assumed the risk of meeting, on the highway, such a logging truck as was operated by defendants.

Plaintiffs having replied with denials to the affirmative allegations contained in defendants' answer, the action was tried to a jury, which returned a verdict in plaintiffs' favor in the sum of $6,317.50.

Defendants' motion for judgment in their favor notwithstanding the verdict or, in the alternative, for a new trial having been denied, judgment was entered on the verdict in plaintiffs' favor, from which judgment the defendants have appealed.

Unless indicated to the contrary, we shall refer to appellant partners as appellants.

The Hall Creek road, along which, on the day of the accident, respondents were proceeding in a general northwesterly direction, runs through a rather rough and rugged country, following the valleys, and frequently making rather sharp curves, with high banks on one side and, often, declivities, or ponds, or streams, on the other. The roadway is not paved and is rather narrow.

The collision occurred about ten miles from Inchelium on a sharp curve of the road, with a high bank on one side and a slight declivity to a body of water on the other. At this curve, the highway was eighteen feet and a few inches in width.

Respondents' Ford was five feet nine inches in width, and appellant Simms was driving a twelve-ton logging truck and trailer, equipped with 'logging bunks' extending crossways on the body of the truck, which was loaded with logs thirty-two feet in length. The truck had three axles and the trailer two, with two single wheels on the front axle and dual wheels on each of the rear axles of the truck and on the two axles of the trailer. The overall length of the truck was forty-three feet, its width ten feet, and, with its load, it was twelve to thirteen feet in height.

At the place of the accident, on respondents' right was a rough, steep bank, which rose directly from the edge of the roadway, the traveled portion of which, suitable for driving, was approximately fifteen feet in width. As respondents approached the curve to the right, they were proceeding, as respondents testified, at a speed of twenty to twenty-five miles an hour. As they rounded the curve, they met appellants' truck, approaching from the opposite direction. The driver of the truck gave no signal, by horn, of its presence in the curve. Respondents testified that, when they first saw the truck, it was from twenty to twenty-two feet distant. Appellant Simms testified that he was proceeding at a speed of fifteen to eighteen miles an hour.

It was apparently admitted that a portion of the logging truck was to its left of the center line of the roadway, the left rear wheel being probably three feet to the left of that line.

Cecil Houtz, woods foreman for appellants, testifying as a witness for appellants, stated that he visited the scene of the accident very soon after its occurrence, and while appellant Simms was trying to assist Mrs. Rowe from the ford. The witness testified that the rear end of the logging truck was about six feet from the bank, and the front end a little more. Other testimony, introduced by respondents, indicated that the truck was farther than that on its left side of the road.

Mr. Rowe endeavored to avoid a collision by driving, in part, onto the steep bank to his right, but, while passing the logging truck, one of the logs collided with the top of the cab and the Ford was overturned, both Mr. and Mrs. Rowe suffering serious injuries.

Officer P. H. Schmoe, of the state patrol, in the course of an investigation of the accident, visited the scene the following morning. Appellant Simms was present with the truck he had been driving the previous day, and placed his truck on the road in the position which he stated it had occupied at the time of the collision. Officer Schmoe made measurements of the road and the truck. He testified that the road had been graded early that morning and the roadbed widened to some extent. Testimony was introduced to the effect that the grading had been done by an agent of appellants, and all tracks on the roadbed thereby obliterated.

Apparently, appellants' truck exceeded, by two feet, the width allowed by statute. Rem.Rev.Stat., Vol. 7A, § 6360-47, provides that the total outside width of any vehicle or load thereon shall not exceed eight feet.

The jury might well have found, from the evidence, that there was not sufficient room on the roadbed for respondents' Ford to pass appellants' logging truck.

Some time prior to the accident, appellants had secured, from the commissioners of Ferry county, permission to operate upon this road trucks which, with their load, exceeded the width permitted by statute, and had been availing themselves of that privilege for some time. At intervals along the road, there had been posted signs reading 'overwidth trucks traveling on highway.'

The foregoing brief and general statement indicates the circumstances surrounding the accident.

Error is assigned upon rulings of the trial court permitting respondent Charles A. Rowe to testify concerning a statement which the witness said was made by appellant Simms, in answer to a question from some person unknown, as to the cause of the accident; permitting in evidence respondents' exhibit No. 11, a contract between Ferry county and appellants; denying appellants' motion for nonsuit; upon the court's instructions Nos. 9, 11, 12, 14, 16, 18, 19; upon the denial of appellants' motion for judgment in their favor notwithstanding the verdict, and of their motion for a new trial; upon the entry of judgment against appellant William Simms; upon the entry of judgment against the appellant partners, and upon the entry of the judgment appealed from.

Appellants assign error upon the ruling of the trial court permitting respondent Charles A. Rowe, while testifying as a witness on his own behalf, to testify concerning a conversation which he overheard immediately after the collision. The witness stated that he heard some unidentified...