Sheffield v. Union Oil Co. of California

• Decision Date: 01 December 1914
• Docket Number: 12017.
• Citation: 144 P. 529,82 Wash. 386
• Parties: SHEFFIELD v. UNION OIL CO. OF CALIFORNIA.
• Court: Washington Supreme Court

144 P. 529

82 Wash. 386

SHEFFIELD v. UNION OIL CO. OF CALIFORNIA.

No. 12017.

Supreme Court of Washington

December 1, 1914

Department 1. Appeal from Superior Court, King County; King Dykeman Judge.

Action by Henry Sheffield against the Union Oil Company of California. From a judgment for plaintiff, defendant appeals. Affirmed.

Brightman, Halverstadt & Tennant, of Seattle, for appellant.

Carkeek McDonald & Kapp, of Seattle, for respondent.

MORRIS J.

Respondent brought this action to recover damages for personal injuries sustained in being struck by a motor truck of the appellant. He recovered in the court below, and this appeal followed.

The facts, so far as they are material to the questions submitted by the appeal, are about as follows: On May 9, 1913, at about 9 o'clock in the morning, the respondent was riding a bicycle, going west on Jackson street, Seattle. Coming to the intersection of Jackson street with First Avenue South, he looked to the right and saw the motor truck of the appellant coming south on the west side of First Avenue South, and at about one block to the north. Appellant continued across First Avenue South, and, when near the west curb on the north side of the crossing, he looked again and saw the motor truck about half a block away, near the west curb. He then turned and rode his wheel west of the center of the street between the west curb and the west car rail. When near the south margin of the crossing, he heard the motor truck coming close behind him, and turned his bicycle into the middle of the west car track in order to let the motor truck pass. He so continued for a short distance, when, hearing the motor truck immediately behind him and being of the opinion that, unless he turned out, he would be run down, he turned his bicycle to the right, and, as his wheel struck the west rail of the car track, it skidded and he started to fall, when he was struck by the motor car. The facts are sufficient to establish negligence on the part of the appellant, and the finding in this respect is not seriously questioned; the main contention here being (1) that respondent was guilty of contributory negligence as a matter of law in turning his bicycle to the right in the effort to avoid the truck, and (2) that the court in one of its instructions made an erroneous comment upon the facts.

Appellant's first point is predicated upon section 5569, Rem. & Bal. Code, providing that the driver or operator of 'every automobile or motor vehicle shall * * * turn to the right in passing vehicles, teams and persons moving or headed in the same direction.' Without recurring to the evidence from which it so appears, it is shown that the respondent at the time he turned to the...