Sebern v. Northwest Cities Gas Co., 23535.

• Decision Date: 08 April 1932
• Docket Number: 23535.
• Citation: 10 P.2d 210,167 Wash. 600
• Parties: SEBERN v. NORTHWEST CITIES GAS CO. et al. SEBERN et ux. v. SAME.
• Court: Washington Supreme Court

10 P.2d 210

167 Wash. 600

SEBERN v. NORTHWEST CITIES GAS CO. et al.

SEBERN et ux. v. SAME.

No. 23535.

Supreme Court of Washington

April 8, 1932

Department 1.

Appeal from Superior Court, Walla Walla County; Robert S Macfarlane, Judge.

Two actions, one by Rudolph Sebern, a minor, by Ralph Sebern, his guardian ad litem, and the other by Ralph Sebern and Grace Sebern, husband and wife, both against the Northwest Cities Gas Company and others. From the judgments for plaintiffs defendants appeal.

Affirmed.

Grant S. Bond and M. A. Marquis, both of Walla Walla, Ralph S. Pierce, of Seattle, and McCarthy & Edge, of Spokane, for appellants.

E. L Casey, of Walla Walla, for respondents.

HERMAN J.

Rudolph Sebern, a minor, brought suit by Ralph Sebern, his guardian ad litem, against the defendants for injuries sustained in a collision. Ralph Sebern and Grace Sebern, parents of the minor, sued the defendants for expenses incurred for medical attention and care of the injured boy. The causes were consolidated for trial, the only difference in the two cases relating to the elements of damages claimed. A trial resulted in judgments for plaintiffs, from which defendants have appealed.

Appellants Northwest Cities Gas Company and Edward M. Clark, driver for the gas company, are conducting one appeal, and appellants Eugene Tausick and J. J. Kauffman, doing business as Tausick & Kauffman, and Roy Smith, driver of their coal truck, have also appealed. Both groups of appellants assign as error denials of motions for judgment for each group of defendants at the close of plaintiff's evidence and after the termination of all the evidence, and denial by the court of the motions of each group of appellants for judgment notwithstanding the verdict. The disposition of these assignments of error requires a consideration of the evidence.

Respondent Rudolph Sebern, an eleven year old boy, was riding his bicycle in the intersection of Colville and Rose streets in the city of Walla Walla immediately prior to the accident out of which his injuries arose, which occurred at about 1:45 p. m., October 25, 1930. In support of respondent's right to recover, testimony was introduced which was in substance as follows:

Rudolph Sebern, riding his bicycle, entered Colville street from the east, emerging from an alley, crossed the street to the west side, and proceeded south on that street toward the intersection of Colville and Rose streets. At that time a coal truck owned by appellants Tausick & Kauffman, and driven by their employee, Roy Smith, was proceeding in a southerly direction on Colville street. After the boy crossed the street, and when he started toward the south, the coal truck was approximately seventy feet behind him. At the same time a truck owned by appellant Northwest Cities Gas Company, and driven by appellant Edward M. Clark, was proceeding along Rose street in an easterly direction, approaching the intersection of Rose and Colville streets. The boy continued on his course south about six or eight feet from the west curb, with the knowledge that the coal truck was behind him. What next happened is set forth by the testimony of the boy, as follows:

'A. * * * I went until I came about to the intersection, and then I seen the gas company truck, and then I looked back for a second to see what the other truck was doing, and I seen the gas truck start to slow up, and then I looked back, and when I looked back again the gas truck had stopped. Then I did not have time to turn or think or anything, and I bumped up against the gas company truck and fell back. Then I tried to get up, and the Tausick-Kauffman truck came and ran over me.

'Q. When you bumped against the gas company truck were you hurt? A. No, I do not believe I would have been hurt if that was all that happened.

'Q. If that was all that happened? A. No, I would not have been hurt if that had been all that had happened.'

After the boy struck the gas truck and fell with his bicycle, the coal truck continued on its course and ran into the boy as he was attempting to rise. Appellant Roy Smith, the driver of the coal truck, testified that, from the time the boy came out of the alley until the coal truck collided with the gas truck, he neither increased nor diminished the speed of his truck. He testified at the trial that in the report to the police department he had not stated that his speed was ten miles per hour, but, upon the report being submitted to him for inspection, he admitted that it showed his speed as ten miles per hour, and that it contained a statement that he did not give a warning. This same witness testified that when he approached the intersection the boy was from twenty to twenty-five feet ahead of him, and that, when the boy struck the gas company's truck, the witness was unable to stop his truck within twenty-five feet, notwithstanding the low speed at which it was moving. The surface of the intersection and of the streets approaching it was dry at the time of the accident, and the boy and the coal truck were both traveling slightly upgrade. The route of the gas truck was likewise slightly uphill.

Mr. A. W. Hale, an eyewitness to the accident, testified as follows:

'Q. Was there anything on the street there, Mr. Hale, any vehicle or other obstruction on the street on Colville street? East of the intersection of Rose were there any obstructions there to prevent the coal truck from turning to the left? A. No, there was plenty of room there. * * *

'Q. You saw the situation in the street there, what is your judgment as to whether or not the driver of the coal truck could have turned to the left around the corner and have avoided the accident? A. It looked to me like he got excited and drove right into him.'

The trial court was correct in refusing to hold as a matter of law that Rudolph Sebern was guilty of contributory negligence. There was ample testimony of primary negligence on the part of the driver for appellants Tausick & Kauffman. It is the duty of the driver of an automobile to drive in such a manner that the vehicle can be stopped within a reasonable distance Before striking objects in front of it. Jacklin v. North Coast Transportation Co. (Wash.) 5 P. (2d) 325. It was not error for the trial court to deny the motions for a directed verdict and the motion for judgment notwithstanding the verdict made on behalf of appellants Tausick, Kauffman, and Roy Smith.

Appellant Edward M. Clark, driver for appellant Northwest Cities Gas Company, was approaching from the right of both the...