Saxe v. Terry

• Decision Date: 18 October 1926
• Docket Number: 19659.
• Citation: Saxe v. Terry, 140 Wash. 503, 250 P. 27 (Wash. 1926)
• Parties: SAXE v. TERRY et ux.
• Court: Washington Supreme Court

250 P. 27

140 Wash. 503

SAXE v. TERRY et ux.

No. 19659.

Supreme Court of Washington, En Banc.

October 18, 1926

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

Action by Alvin H. Saxe against C. O. Terry and wife.From a judgment for plaintiff, defendants appeal.Reversed and remanded, with directions.

Fullerton J., dissenting.

Ellis Fletcher & Evans, of Tacoma, for appellants.

Edwin C. Matthias, of Seattle, amicus curiae.

Harry R. Lea, of Tacoma, for respondent.

MAIN J.

This action was brought to recover damages for personal injuries.The case was tried to the court and a jury, and resulted in a verdict in favor of the plaintiff in the sum of $4,070.Motions for judgment notwithstanding the verdict and for a new trial were interposed and overruled.Judgment was entered on the verdict, from which the defendants appeal.

The appellantC. O. Terry, who will be referred to as though he were the only party involved on that side of the case, and the respondent, both resided in the city of Tacoma.One Edward J. Moldrup resides in the city of Puyallup.The appellant and respondent had been acquainted for a number of years prior to the 5th day of November, 1924 when the accident for which damages are sought occurred.They were both interested in hunting and fishing, and when they met from time to time the conversation was largely along these lines.On the day prior to the accident the appellant by telephone communicated with respondent and suggested a hunting trip to the Nisqually Flats on the following morning stating that he desired to take Mr. Moldrup along.The respondent consented to the trip.At 4:30 a. m. the parties had breakfast together, then drove to Puyallup where they got Moldrup and started for the Nisqually Flats.The appellant had placed his decoys in the tonneau of the car.The respondent rode in the front seat with the appellant and Moldrup in the back seat.By aid of the light in the dome of the car Moldrup and the respondent as they proceeded along were stringing the decoys, the respondent cutting the strings the proper length and Moldrup tying them to the decoys.It was not yet daylight, and it was the desire of all to reach the hunting ground early in the morning.As they proceeded along and rounded a curve in the road the respondent, owing to some movement of the car, said that that was a close call, or something to that effect, to which appellant replied, 'Yes; it was, and I have to watch out, there is another curve down below here.'When they approached the second curve a few moments later the automobile failed to make the turn, went into the ditch, and the appellant sustained the injuries for which the recovery was sought.

The respondent testified:

'I did not notice we were approaching the second curve until we were right on top of it.Then I shouted; I said, 'There it is!'Up to that time I shouted I was not aware that the doctor had done anything to lessen the speed of the car.I could not say whether he had attempted anything or not.I do not know the speed the car was traveling at that time.'

Moldrup testified:

'I remember the right angle curve just before the curve where the accident happened and remember what happened at that curve.We came pretty near not making that turn.Saxe said, 'Pretty close call, Doc,' and he said, 'Yes, there is another turn on here a half mile; we will have to look out for that.'Saxe continued cutting strings for the decoys.Neither of us were asked to assist in looking down the road or anything of the kind.I do not know the speed the car was making.It is pretty hard to estimate sitting in the back there, and I was working all the time.He pretty nearly didn't make the first turn for the reason that I think he came upon it before he knew it was there.There was not much of a skidding.* * * He should have made a longer turn.'

The appellant testified that as he approached the second turn he was traveling at the rate of approximately 25 miles an hour and that the failure to make the turn was due to gravel or small pebbles upon the pavement at that place.Moldrup also testified to the presence of gravel.There was other testimony as to the conditions after the accident which will not be here detailed.

It will be assumed but not decided (1) that the appellant and respondent were not engaged in a joint enterprise or common adventure; (2) that there was sufficient evidence of the lack of ordinary care, if that were the rule to apply to a case of this kind to take the case to the jury; and (3) that the respondent was an invited guest.The decisive question, however, is whether there was gross negligence on the part of the appellant, or, to state it otherwise, whether there was evidence from which the jury had a right to find gross negligence.In the recent case of Heiman v. Kloizner(Wash.)247 P. 1034, a similar question was presented, and it was there said:

'The problem, as we view it, is more one of interpretation of this somewhat indefinite and unsatisfactory testimony, rather than one of conflict of evidence.We do not think the evidence calls for the conclusion that appellant was negligent, if at all, in that degree necessary to be shown to render him liable in damages to respondent, in view of her being merely his invited guest.

'Varying degrees of negligence, or varying degrees of required care, if one prefers to have the proposition so stated, touching the question of liability rested upon the ground of negligence, have been repeatedly recognized by us as a practicable working principle of the law of this state.Sears v. Seattle Consolidated Street R. Co.,6 Wash 227, 33 P. 389, 1081;McConkey v. Oregon R. & Nav. Co.,35 Wash. 55, 76 P. 526;Jordan v. Seattle, Renton, etc., R. Co.,47 Wash. 503, 92 P. 284;Connell v. Seattle, Renton, etc., R. Co.,47 Wash. 510, 92 P. 377;Valentine v. Northern P. R. Co.,70 Wash. 95, 126 P. 99;Kroeger v. Grays Harbor Const. Co.,83 Wash. 68, 145 P. 63;Bradford-Kennedy Co. v. Buchanan,91 Wash. 539, 158 P. 76;Smith v. Seattle School Dist. No. 1,112 Wash. 64, 191 P. 858;Pinckard v. Pease,115 Wash. 282, 197 P. 49;Fleming v. Red Top Cab Co.,133 Wash. 338, 233 P. 639.We do not mean by this that varying degrees of negligence or required care have been or can be differentiated with any sort of precision, only that differing situations, conditions, and relations call for differing degrees of care.

'Now, in the case before us, it hardly needs argument to demonstrate that appellant was not required to exercise that high degree of care in the carrying of respondent in his automobile merely as his invited guest that he would have been required to exercise had he been carrying her in his automobile for hire.It seems equally plain that, in carrying respondent in his automobile as he did, appellant was required to in some measure exercise a higher degree of care for her safety than he would have been required to exercise with reference to the safety of a mere trespasser on his

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