Shook v. Bristow

• Decision Date: 11 December 1952
• Docket Number: No. 32191,32191
• Citation: 250 P.2d 946,41 Wn.2d 623
• Court: Washington Supreme Court
• Parties: SHOOK et ux. v. BRISTOW et ux.

Page 623

41 Wn.2d 623

250 P.2d 946

SHOOK et ux. v. BRISTOW et ux.

No. 32191.

Supreme Court of Washington, Department 1.

Dec. 11, 1952.

Skeel, McKelvy, Henke, Evenson & Uhlmann and F. V. Betts, Seattle, for appellants.

Arthur R. Paulsen, Tacoma, for respondents.

DONWORTH, Justice.

This action arose from a collision which occurred between two automobiles at the intersection of the Seattle-Tacoma highway and Ardena and Anderson roads, a few miles northeast of Tacoma. The Seattle-Tacoma highway, commonly known as U.S. 99, is an arterial highway while the intersecting roads are not.

For convenience we shall refer to plaintiff and defendant husbands as if they were the sole parties to the action.

Plaintiff, the disfavored driver, sought to recover general and special damages in the sum of $11,065. Defendant, who was traveling toward Tacoma on the arterial, cross-complained for damage to his automobile. Each party denied the material allegations made by the other.

The action was tried before the court sitting with a jury. Defendant's motions for a dismissal at the close of plaintiff's case and for a directed verdict at the close of all the evidence were denied and the case went to the jury, which returned a verdict for plaintiff in the sum of $800.

Thereafter defendant filed a motion for judgment notwithstanding the verdict and plaintiff moved for a new trial. The court entered an order in which, after reviewing the evidence at length and stating its reasons, it denied defendant's motion and granted plaintiff's motion for a new trial on the ground that the verdict was so inadequate as to indicate that it was the result of passion or prejudice. Defendant has appealed from that order.

While appellant has assigned as one of the errors of which he complains the court's action in granting respondent a new trial, he has not argued the assignment. Respondent's wife suffered severe injuries as a result of the collision and it is not questioned that, if respondent is entitled to recover from appellant, the verdict for eight hundred dollars was wholly inadequate and cannot be permitted to stand. Appellant has also assigned error to the court's denial of his motions for a directed verdict and for judgment notwithstanding the verdict. His sole argument in support of that assignment of error is that respondent was guilty of contributory negligence as a matter of law.

In considering appellant's argument we bear in mind the following rules: (1) That the question whether there has been negligence or contributory negligence is one for the jury unless the facts are such that all reasonable men must draw the same conclusion from them, in which event the question is one of law for the court; (2) that a motion for a directed verdict or for judgment notwithstanding the verdict admits the truth of respondent's evidence and all inferences that reasonably can be drawn therefrom and requires that the evidence be interpreted most strongly against appellant and in the light most favorable to respondent. Neel v. Henne, 30 Wash.2d 24, 190 P.2d 775, and cases cited.

The evidence, interpreted in the light most favorable to respondent, is as follows:

On a Sunday evening, August 21, 1949, a short time after 8:00 p. m. (daylight saving time) respondent drove his 1937 Plymouth sedan north on Ardena Road to a point where the road intersects U. S. 99. This is a heavily traveled, paved, four-lane arterial highway. At some point west of the intersection it commences a long sweeping curve to the north in the direction of Seattle, and at the intersection it extends in a generally southwest to northeast direction. Ardena road intersects and crosses the arterial highway at approximately a forty-five degree angle. North of U. S. 99 the road is known as Anderson road.

Respondent stopped on Ardena road about ten feet south of the paved section of the arterial. He intended to cross the highway and proceed north on Anderson road. Because of the angle of the intersection he had ninety feet of arterial highway to cross. Added to this distance was the length of his car, which he estimated to be between fourteen and sixteen feet. Therefore, the rear end of his car had in all approximately one hundred five feet to travel in order to completely clear the four lanes of the arterial.

The two lanes nearest him as he waited to cross carried Seattle-bound traffic which approached from his left. The two farthest lanes carried Tacoma-bound traffic which approached from his right. The highway was divided in the center by a four-foot wide dirt strip.

The traffic on U. S. 99 was heavy and respondent waited two or three minutes for it to clear sufficiently for him to cross. It was late enough in the evening that he had turned on his dim lights, but visibility was good and the pavement was dry. Because of the curve of the highway, however, his unobstructed view to the left toward Tacoma was limited to an estimated seven hundred feet. A sharper curve in the highway to his right limited his view of the two Tacoma-bound lanes to a distance of five hundred feet (as he measured it subsequent to the accident).

The traffic cleared and respondent entered upon the highway when there were no vehicles in sight in either direction. When he was in the first or outside lane of the Seattle-bound half of the highway he looked to his left and observed cars in each of the Seattle-bound lanes about seven hundred feet away. The two leading cars were abreast and were approaching at a high rate of speed. It is a reasonable inference that they were traveling at the maximum lawful speed of fity miles per hour. If so, they were approaching him at the rate of seventy-three and one-third feet per second. Respondent paid no further attention to them because he then judged that they presented no danger to him.

While in the first lane he also observed a Ford traveling toward Tacoma which rounded the curve five hundred feet to his right. The Ford was in the fourth or outside lane of the Tacoma-bound half of the highway. Respondent then judged that he had ample time to cross ahead of the Ford which, according to appellant, was traveling forty or forty-five miles per hour. Respondent continued across the highway, increasing his speed.

As he neared the four-foot dividing strip in the center of the highway he glanced again to his right and for the first time saw appellant's car which was in the inside lane, passing the Ford, four hundred feet away. He then judged appellant's speed to be at least seventy miles per hour.

Respondent could then have stopped his car in about ten feet, or less than the car's length. He did not do so but attempted to accelerate his speed still more. His wife who was sitting alongside him in the front seat also saw appellant's car approaching at high speed and urged her husband to hurry.

As he crossed the four-foot dividing strip he observed that appellant was then only three hundred feet away, still traveling in the inside lane. As respondent proceeded to cross the last two lanes of the highway he observed appellant, then two hundred feet away, increasing his speed and moving from the inside lane into the outside lane. Respondent felt his front wheels enter onto the unpaved shoulder on the north side of the highway. At that time he saw appellant's car almost upon him and he turned to the left in an effort to avoid a collision. Appellant testified that he first applied his brakes when he was twelve feet from respondent's car.

When all of respondent's car except the back one-third had left the highway, the right front end of appellant's car struck his right rear wheel. The force of the collision turned his car around so that it faced south and it came to rest about eight feet off the highway and eight feet west of Anderson road. Appellant's car continued southwest for approximately seventy-five feet and came to rest in the inside lane. Neither car upset.

At no time did respondent hesitate after he started to cross the highway, but he continuously increased his speed. He estimated that his speed did not exceed twenty miles per hour up to the time of the collision.

Appellant does not argue that the jury would not be justified in finding that he was negligent in colliding with respondent. But he urges that in view of RCW 46.60.170 respondent was guilty of contributory negligence as a matter of law in attempting to cross in front of him. The statute reads as follows:

'The operator of a vehicle shall stop as required by law at the entrance to any intersection with an arterial public highway, and having stopped shall look out for and give right of way to any vehicles upon the arterial highway simultaneously approaching a given point within the intersection, whether or not his vehicle first reaches and enters the intersection.' (Italics ours.)

Appellant relies upon the second rule laid down by this court in Martin v. Hadenfeldt, 157 Wash. 563, 289 P. 533. The rule, as modified for intersections with arterial highways, is that the primary duty of avoiding a collision rests upon the driver who enters the arterial highway, which duty he must perform with reasonable regard to the maintenance of a fair margin of safety at all times. Appellant has cited a number of cases in which we have emphasized the primary duty which rests upon the disfavored driver and have held that he is negligent as a matter of law in racing for the right of way when he could have avoided a collision by slowing down or stopping. We have specifically held that a period of time up to four seconds is not a fair margin of safety. Emanuel v. Wise, 11 Wash.2d 198, 118 P.2d 969; Billingsley v. Rovig-Temple Co., 16 Wash.2d 202, 133 P.2d 265; Plenderlieth v. McGuire, 27 Wash.2d 841, 180 P.2d 808; Shultes v. Halpin, 33 Wash.2d 294, 205 P.2d 1201.

It is...