Simmons v. Cowlitz County, 28516.
| Decision Date | 31 December 1941 |
| Docket Number | 28516. |
| Citation | 120 P.2d 479,12 Wn.2d 84 |
| Parties | SIMMONS et ux. v. COWLITZ COUNTY. |
| Court | Washington Supreme Court |
Department 1.
Action for injuries sustained in an automobile accident by Virgil Simmons and wife against Cowlitz County. From a judgment for the defendant notwithstanding verdict for plaintiff plaintiffs appeal.
Reversed and remanded with directions.
Appeal from Superior Court, Cowlitz County; J. E Stone, Judge.
Cushing & Jones, of Vancouver, and Vergeer & Samuels, of Portland Or., for appellants.
H. Jerard Imus, Pros. Atty., and Joe L. Johnson, both of Kelso, for respondent.
The afternoon of June 5, 1940, plaintiffs were proceeding northerly in their automobile, which was operated by plaintiff husband, on Kalama river road in Cowlitz county. The course of that road, which is approximately fourteen feet wide at the place of the accident, is northerly and southerly along the Kalama river between Pigeon Springs and Kalama. Underbrush was growing along the outside edge of this road which was cut through a rocky embankment more than thirty feet above the level of the river. The road was graded to the outside edge and had the appearance of firmness which would make it safe for travel thereon. While it had been constructed many years prior to the date of the accident the road had not been improved other than by placing gravel thereon and grading it. Loose rocks and gravel had accumulated along the outside edge of the road which for a width of eighteen inches to two feet was soft and did not have a sufficiently substantial foundation to support vehicular traffic over that portion of the highway. On the inside of the road at the scene of the accidnet a crevice was cut into the road bank for use as a turnout for southbound vehicles. As plaintiffs, who were proceeding northerly at the rate of seven or eight miles an hour, neared this place they noticed a southbound automobile which had entered the crevice to permit northbound vehicles to pass. Plaintiffs followed a northbound dual-wheeled tie truck which passed the automobile parked in the crevice. Their automobile, while passing and parallel with the parked automobile, as a result of the collapse of eighteen inches to two feet in width of the outer edge of the road, rolled down the embankment into the Kalama river. The automobile was rendered valueless and plaintiff wife was seriously injured.
On the ground that the proximate cause of the property damage and personal injuries sustained by them was defendant county's negligence in failing to place warning signs or barriers at the place where the accident occurred plaintiffs brought this action to recover therefor. The trial of the cause to the court and a jury resulted in verdict of one thousand dollars against the defendant. Motion for judgment notwithstanding the verdict was granted. The order granting that motion denied defendant's motion for a new trial. Plaintiffs appealed.
The only error assigned is the granting of the judgment notwithstanding the verdict. It is respondent's position that as there was no evidence from which it can reasonably be inferred that respondent was negligent in the construction or maintenance of Kalama river road; and as appellants' contributory negligence in driving too close to the edge of the highway over which they had frequently traveled and as to the condition of which they had knowledge bars recovery as a matter of law, the trial court correctly granted the motion for judgment notwithstanding the verdict.
We have uniformly held that a motion for judgment notwithstanding the verdict should not be granted unless the court can say, as a matter of law, that there is neither evidence nor reasonable inference from the evidence to justify the verdict. All competent evidence in the record which is favorable to the appellants we must regard as true and must give to them the benefit of every favorable inference which may reasonably be drawn from such evidence. Where the minds of reasonable men may differ, the question should be submitted to the jury. If, when so considered, we find there is substantial evidence to sustain the verdict, the judgment thereon must be affirmed. Boyd v. Cole, 189 Wash. 81, 63 P.2d 931; Perren v. Press, 196 Wash. 14, 81 P.2d 867.
There was substantial evidence to warrant the jury in finding primary negligence on the part of respondent and the question of appellants' contributory negligence was one of fact for the jury. The facts established by the verdict are summarized as follows:
The fourteen-foot Kalama river county road at the place where the accident occurred was graded to the outside edge and to the point where vines and underbrush were growing above the edge of the highway. When appellants proceeded over this portion of the road it presented an appearance of smoothness and firmness. By that appearance travelers were assured, in the absence of warning signs or barriers, that it was not perilous to use that portion of the road. Respondent county did not warn the traveling public by signs or barriers of the dangerous condition it permitted to develop and of which it had knowledge. Appellants were proceeding in the traveled portion of the road at the time a portion of the road collapsed, which portion was, and by the county engineer was regarded as, a part of the road.
The shoulder or that portion of the highway which collapsed was improved in the same manner as the other portion of the highway. That improved portion of this road which was adjacent to the edge of the road, the shoulder of the road or highway as it is called, was as much a part of this road or highway as any part of the road. Barach v. Island Empire Tel. & Tel. Co., 151 Wash. 279, 275 P. 713, Duggins v. International Motor Transit Co., 153 Wash. 549, 280 P. 50.
Appellants could lawfully use any portion of Kalama river road and the graveled portion of the shoulder adjacent to the edge of that road as well as the other portion; in fact, by its improvement in the same manner as the other portion of the road was improved, the county invited its use by the...
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