Shultes v. Halpin

• Decision Date: 29 April 1949
• Docket Number: 30727.
• Citation: 205 P.2d 1201,33 Wn.2d 294
• Court: Washington Supreme Court
• Parties: SHULTES v. HALPIN et al.

205 P.2d 1201

33 Wn.2d 294

SHULTES v. HALPIN et al.

No. 30727.

Supreme Court of Washington

April 29, 1949

Department 1

Action by Oakford M. Shultes against James P. Halpin and others for personal injuries and property loss resulting from an intersectional collision of two automobiles. Defendants brought a cross-action. From a judgment for plaintiff and dismissing the cross-action, defendants appeal.

Appeal from Superior Court, King County; Clay Allen, Judge.

Lycette Diamond & Sylvester, of Seattle, for appellants.

Langlie & Todd, of Seattle, for respondent.

STEINERT Justice.

Plaintiff brought suit against the defendants to recover damages for personal injuries and property loss resulting from a collision between two automobiles within a street intersection. The defendants cross-complained against the plaintiff for damages to their automobile as the result of the same collision. The cause was tried to the court, without a jury. The trial court made findings of fact, drew conclusions of law, and entered judgment thereon in favor of plaintiff. The defendants appealed.

At the time of the collision here involved, respondent, Oakford M Shultes, was in the act of making a vehicular left-hand turn toward the west, within a street intersection, and, while going forward in that direction, was struck broadside by an automobile approaching from the north, which was to the right of the respondent. The automobile which struck respondent's car was owned by the appellants Vincent Halpin and Gene Halpin, husband and wife (impleaded in the complaint as Richard Roe Halpin and Jane Doe Halpin, his wife), and was at the time being driven by their son, appellant James P. Halpin, a singel man (described in the complaint as a married person).

Respondent alleged in his complaint that the collision and resulting injuries were caused by the negligence of James Halpin while operating his parents' automobile, such alleged negligence consisting of the following acts and omissions:

'(a) In operating said vehicle without lights during the hours of darkness.

'(b) In operating said vehicle at an excessive and dangerous speed considering the conditions existing at the time and place of the accident.

'(c) In failing to keep a proper lookout, or at all, for other lawful users of the highway.

'(d) In failing to keep the windshield of said automobile clear and in such condition as to afford him a clear view ahead.

'(e) In operating said vehicle without a device in good working order for cleaning and [the] exterior portion of the windshield over a sufficient area thereof and in a satisfactory manner to afford said defendant [appellant] a clear view ahead.

'(f) In failing to keep said vehicle under control.

'(g) In failing to do anything to avoid an accident when with the exercise of reasonable care the defendant could and should have avoided colliding with plaintiff's [respondent's] automobile.

'(h) In operating said vehicle while defendant's drivers license was suspended or without any drivers license at all.'

By a trial amendment, respondent set up, as an additional ground of negligence on the part of the appellants, the alleged fact that just prior to the collision the appellant driver had overtaken another vehicle proceeding in the same direction toward the intersection and had passed the overtaken vehicle on the right-hand side thereof.

Appellants, in turn, alleged in their cross-complaint that the collision was caused by respondent's negligence in the following respects:

'(1) In making a left-hand turn in front of the defendants' [appellants'] automobile at a time when the same was so close that a collision was inevitable; (2) failing to yield the right-of-way to the defendants, when the defendants were entitled to the right-of-way; (3) in failing to give any signal for a left-hand turn; (4) in cutting the corner in making the turn without proceeding to a proper turning place on said Aurora Ave.; (5) in failing to keep a proper lookout, if any lookout at all, for other persons lawfully using said highway; (6) in failing to keep said automobile under control; (7) in failing to do anything to avoid an accident when, with the exercise of reasonable care, the plaintiff [respondent] could and should have avoided colliding with the defendants' automobile.'

At the conclusion of the trial, and after the trial court had rendered a memorandum opinion in the case, respondent's counsel presented findings of fact and conclusions of law, which the court signed and entered, declaring, inter alia, that the following specific acts of negligence on the part of the appellants proximately caused the collision and resulting injuries: (1) operating appellants' vehicle at an excessive and dangerous rate of speed, under the conditions existing at the time and place of the accident; (2) failing to observe or heed the caution light at the center of the intersection; and (3) failing to keep appellants' vehicle under control. The court further found that, under the circumstances existing at the time and place of the accident, respondent's left-hand turn was made in the exercise of due care, and that the appellant driver observed respondent's car in a position of peril in sufficient time to have avoided the collision.

In this connection, it will be noted that the trial court did not find, as respondent had previously alleged, that appellants' automobile was operated at the time without lights, or without a proper driver's license, or that its windshield was improperly maintained or equipped, or that immediately prior to the collision it had overtaken another vehicle and had passed that vehicle on its right-hand side.

The basic questions involved in this appeal, with respect to respondent's right to recover upon his complaint, are (1) whether, under the facts of the case, appellants were guilty of negligence proximately causing the collision and the resulting injuries; and (2) whether respondent was, at the same time, guilty of contributory negligence, barring recovery by him. Similar questions, but conversely affecting the parties, arise upon appellants' cross-complaint.

Appellants' assignments of error are predicated largely upon the findings of fact and conclusions of law made by the trial court and upon the refusal of the court to make certain findings and conclusions proposed by the appellants. It is therefore necessary that we review the evidence in the case.

The accident out of which this suit arose occurred within the intersection of Aurora avenue and Eighty-fifth street, in the city of Seattle. Aurora avenue, one of the main arterial highways of the city and state, extends in a northerly direction from the business section of Seattle to and beyond the northerly city limits. Eighty-fifth street, extending in an easterly-westerly direction and crossing Aurora avenue approximately at right angles, is an arterial street only from the west line of Aurora avenue to points west thereof; east of the intersection, Eighty-fifth street is unimproved.

Aurora avenue is seventy-four feet wide, from curb to curb, north of Eighty- fifth street, and fifty-four feet wide, from curb to curb, south of that street, and is divided into six traffic lanes, three of which carry northbound traffic and three southbound traffic. The outside lane on each side of the avenue, however, is customarily used for parking purposes, and was being so used at the time of this accident. Separating the east half of Aurora avenue from the west half thereof is a raised division, about a foot wide and six or eight inches high.

Eighty-fifth street, the center line of which marks the northerly city limits of Seattle, is thirty-five feet wide west of its intersection with Aurora avenue, and thirty-two feet wide east of the intersection. At the southwest and northeast corners of the intersection were stop signs safeguarding Aurora avenue as an arterial highway, and, suspended above the center of the intersection, was an amber blinker light, which was in operation at the time of the collision here involved.

On October 22, 1947, at about 5:15 p. m., respondent was driving his 1934 Chevrolet coach automobile home from work. Following his usual course, he entered Aurora avenue, from the east, at North Green Lake Way, and thence drove in a northerly direction toward Eighty-fifth street, where he intended to turn left and proceed west. It was getting dark at the time, 'just turning dusk,' and the atmosphere was cloudy and misty. It had been raining to some extent and the pavement was wet. Respondent's car was equipped with a single rain-swipe, attached to that part of the windshield directly ahead of the driver, and through that portion of the windshield the visibility was good, 'something less than perfect,' but, on account of the rain that had recently fallen, the visibility through the right-hand side of the windshield was, as respondent conceded, 'very poor.'

Northbound traffic, leading from the central part, or business section, of the city, was quite heavy that evening, as it usually is at that hour of the day, whereas southbound traffic was sparse. Some of the cars traveling along the streets had turned on their lights, but others had not. Respondent's lights were burning at the time and, as he testified, he could see the headlights of approaching traffic two blocks ahead of him. The street lights had also been turned on in that vicinity.

Concerning the progress of his travel, in his approach to the intersection and his course through it to the point of the collision, respondent testified as follows: After entering Aurora avenue from North Green Lake Way, he drove northwardly a block and a half, along the inside lane, next to the center line, of the...