Shelley v. Norman

Decision Date26 January 1921
Docket Number16065.
Citation114 Wash. 381,195 P. 243
PartiesSHELLEY et ux. v. NORMAN et al.
CourtWashington Supreme Court

Department 1.

Appeal from Superior Court, Yakima County; Geo. B. Holden, Judge.

Action by S. R. Shelley and wife against W. H. Norman and others, in which the defendants filed a cross-action. Judgment for plaintiffs, and defendants appeal. Affirmed.

Stephen E. Chaffee, of Sunnyside, for appellants.

Snively & Bounds, of Yakima, for respondents.

HOLCOMB J.

This is an action and cross-action for damages for injuries resulting from a collision of automobiles belonging to the respective parties. The jury found for plaintiffs in the sum of $2,000 and, having unsuccessfully moved for a judgment non obstante veredicto and for a new trial, defendants prosecuted this appeal from the judgment rendered on the verdict of the jury.

Between 5 and 7 o'clock in the afternoon or evening of August 11 1918, respondents, Shelley and wife, were driving their Ford automobile along the public highway north or west toward the town of Zillah, in Yakima county. This road ran in a general northwesterly and southeasterly direction. Mr. Shelley was at the wheel of the car, one Wilson was riding beside him, and Mrs. Shelley sat on the rear seat holding a child. Approaching them from the other direction just before the accident was one McNeice, driving his Overland automobile. Behind him came appellants in their Buick automobile. One Elliott, stepson of Norman, was driving, a Miss Anderson was riding in the front seat with him, and appellants Norman and wife rode in the rear seat, Mrs. Norman holding her two year old child. All three cars collided after Elliott had turned out to his left-hand side of the road, and had passed, or was attempting to pass, the McNeice car. Mrs Shelley was thrown out of the car onto the roadway, and sustained a broken arm, bruises, and other injuries. Her baby was thrown out and fell on the hood of the Buick car. Mr. Shelley was not thrown out of his car, but had two ribs fractured, his chest injured, and his back and arm bruised and wrenched. The cars of both appellants and respondents were badly damaged.

The facts as to the cause of the accident must be gathered almost entirely from the testimony given by the occupants of the respective cars at the time of the collision. As is usually true in cases of this kind, the witnesses gave somewhat different versions as to the details of the accident.

At the point near Zillah where this accident happened the highway was 27 feet wide. 18 feet being surfaced with gravel and maintained by the county, and the remaining 9 feet being of dirt, not surfaced, but covered somewhat with rock raked off the adjoining surfaced roadway. Witnesses for respondents testified that the graveled portion of the road was the more generally used; that there was a drop of from 6 to 8 inches from that part of the road to the dirt portion; that there were stones in the dirt part and it was rough; that between the two portions of the road and along this drop or embankment some grass and thistles grew. On the other hand, it was testified that one part of the road was traveled about the same as the other; that it was all nearly level; that the dirt part may have been 3 or 4 inches lower than the graveled part; but that it merged right into it, and there was no drop from one part to the other.

Respondents introduced testimony to the effect that, at the time of the accident, their car was traveling at a speed of from 15 to 18 miles an hour. Appellant Norman and his stepson, Elliott, testified that the Shelley car was coming at the rate of 30 miles an hour; that it was 'wobbling' in its course, or 'perceptibly wavering.'

The witness Wilson testified that, when the Shelley car was about 100 feet from the McNeice car, the Norman car came from behind the McNeice car, went clear over to the dirt part of the road--the left, or wrong, side of the road for the Norman car--and, while traveling at the rate of at least 35 miles an hour, cut diagonally across the road in front of the McNeice car. Opposed to this testimony is that of yound Elliott, who said he was driving the Norman car at a speed of but 25 miles an hour as he went by the McNeice car, which was traveling along at about 15 or 18 miles an hour; that he started to get across in front of the McNeice car in order that he might get over on his right side of the road and be out of the way of the Shelley car coming. He said he was about opposite the McNeice car when he saw the Shelley car coming; then said he was a little ahead of the McNeice car when he saw the Ford car of the Shelleys; that the Shelley car was about 100 feet away from his, the Norman car, when he turned it in front of the McNeice car and to his right; that he was then driving the Norman car at about 25 miles an hour; that, when he had passed the McNeice car, he slowed down the Norman car and put on the foot brake, 'because I wanted to see what the other car [the Shelley car] was going to do.' He then said that the Norman car was almost at a standstill when the cars came together. None of the occupants of the Norman car was thrown out, although one door came open and some peaches spilled from the Norman car, where they were being carried. According to this testimony, the McNeice car had been run up the incline off the traveled part of the highway and all three cars were together.

Mr. Shelley's version of what happened just before the collision is to the effect that, as he was driving along on his right-hand side of the graveled portion of the road, at a speed of from 15 to 18 miles an hour, the Norman car suddenly came in sight, on its extreme left-hand, or wrong, side of the road, on the dirt portion thereof; that for him (Shelley) to turn his car farther to the right would have meant to drop down the embankment onto the dirt portion of the road and run head-on into the Norman car, rapidly approaching along that part of the road. Confronted with this emergency, Shelley said he turned to his left.

Elliott, the Normans' driver, testified that he turned to his right, to get on his right side of the road, probably 15 or 20 seconds before the collision, and that he was at 'a practical standstill' at the time the cars came together. If this were true, it hardly seems probable that Shelley would have deliberately turned his Ford car to his wrong side of the road and run into the Norman car. The jury did not take this view. The jury believed the testimony of the Shelleys and their witnesses and determined that the driver of the Norman car was negligent.

Appellants' first claims of error, 1 and 2, are that the court erred in permitting respondents, the Shelleys, and their witnesses, the occupants of the car at the time of the accident, to testify that there was not sufficient room for their car to pass to the right of the Norman car at the moment of meeting the Norman car, for the reason that this called for nothing more than a conclusion on the part of these witnesses. We do not so consider it. It called for a mere matter of calculation. It would not be necessary in such a case to ask the witnesses, respectively, how wide the Norman car was, and how much space was left in the road to the right of the Norman car, and how wide the Shelley car was, and thus make it a matter of subtraction. It was perfectly proper to ask the witnesses whether there was room for one car to pass the other to the right in the roadway.

Appellants earnestly contend that the undisputed facts show that respondents were guilty of such contributory negligence as to defeat any recovery by them. The following language, which is quite pertinent here, was used in the opinion in the case of Tooker v. Perkins, 86 Wash. 567, 574, 150 P. 1138, 1140:

'Much of the argument of appellants assumes that certain facts tending to show contributory negligence on the part of respondents were undisputed. Since the verdict of the jury, we must consider the facts resolved as presented by the respondents. Where there is conflict in the evidence, the facts are for the jury, and, unless physically impossible or naturally improbable so that reasonable minds could not differ thereon, we are compelled to accept as conclusive all those facts which must necessarily have been resolved by the jury in respondents' favor.'

It was also said in that opinion:

'* * * And, as Mr. Tooker [plaintiff] testified, as it [defendants' automobile] came around the standing automobile in front of the Roycroft it had veered to the east to pass around it, and he assumed that it would pass east of him instead of west; that it then suddenly veered west, and it was all so quick it may be inferred that he could not tell where it was going, but attempted to throw his wife out of its way by thrusting her to the left and forward. There is no inference to be derived from this that the respondent [plaintiff] assumed that the automobile would be driven down the east instead of the west driveway, contrary to the law of the road, or that, acting on such assumption, he stepped into collision with it. Great stress is laid upon this detail by appellants, and it is strenuously insisted throughout their argument that respondents assumed that the car would be driven down the east driveway instead of the west driveway, contrary to the law of the road. Neither of the respondents testified that they did so
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8 cases
  • Portland-Seattle Auto Freight, Inc. v. Jones
    • United States
    • Washington Supreme Court
    • December 7, 1942
    ...will avoid liability, the same as any other negligence.' Accord, Bone v. Yellow Cab Co., 129 Wash. 503, 225 P. 44o. In Shelley v. Norman, 114 Wash. 381, 195 P. 243, 246, the following instruction was 'One who violates the law of the road by driving on the wrong side assumes the risk of such......
  • Payne v. Vinecore
    • United States
    • Washington Supreme Court
    • July 10, 1952
    ...There is no contention here that the snow itself constituted an obstruction within the meaning of the quoted statute. In Shelley v. Norman, 114 Wash. 381, 195 P. 243, we approved an instruction, part of which sanctioned the determination of the center line with reference to two sets of trav......
  • Zahler v. Dittmer, 33752
    • United States
    • Washington Supreme Court
    • March 21, 1957
    ...also, Rumford v. Snider, 1948, 31 Wash.2d 431, 197 P.2d 446; Purdie v. Brunswick, 1944, 20 Wash.2d 292, 146 P.2d 809; Shelley v. Norman, 1921, 114 Wash. 381, 195 P. 243. The basis of the trial court's decision was its conclusion that the collision would have occurred even had Zahler been dr......
  • Hamilton v. Cadwell
    • United States
    • Washington Supreme Court
    • August 5, 1938
    ... ... for appellants contend that the court erred in admitting that ... testimony as it called for a conclusion. Shelley v ... Norman, 114 Wash. 381, 195 P. 243, does not sustain the ... argument of respondent to the effect that the evidence to ... ...
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