Snyder v. Smith

• Decision Date: 08 March 1923
• Docket Number: 17575.
• Citation: 124 Wash. 21,213 P. 682
• Parties: SNYDER v. SMITH et al.
• Court: Washington Supreme Court

213 P. 682

124 Wash. 21

SNYDER v. SMITH et al.

No. 17575.

Supreme Court of Washington

March 8, 1923

Department 1.

Appeal from Superior Court, King County; J. T. Rinald, Judge.

Action by Delanzo P. Snyder, a minor, by his guardian ad litem, P D. Snyder, against Louis C. Smith and another. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Walter S. Fulton, of Seattle, for appellant.

Poe &amp Falkner, of Seattle, for respondents.

MACKINTOSH J.

On the afternoon of July 24, 1921, the appellant, aged 18 years, was riding a motorcycle on the Pacific Highway easterly from the city of Tacoma, and the respondent was driving an automobile stage on the Pacific Highway, coming towards the city of Tacoma. At Fife Station, one driving on the Pacific Highway makes a turn to the left, changing the course from a northerly to a westerly direction, and it was at this turn that the collision occurred between the appellant and respondent, which resulted in injuries to the appellant for which this suit was brought.

At Fife Station, the road from Tacoma also continues easterly for some distance. The trial resulted in a nonsuit at the close of appellant's case. The question for determination is whether there was evidence sufficient to entitle the case to go to the jury.

Taking as we are compelled to do, the most favorable view to the appellant of his testimony, the facts may be stated as follows: Appellant was proceeding towards the Fife Station turn at the rate of about 8 miles an hour. When he reached a point a little distance from the turn he saw the respondent's stage at a distance of about 260 feet from him, around the turn, the stage at that time maintaining a rate of speed of from 35 to 40 miles an hour. The appellant reduced the speed of his machine to about 4 miles and hour and when he had gone approximately 90 feet the rear end of his machine was struck by the stage.

He claims that it was his intention not to make the turn on the Pacific Highway, but to have continued easterly on the course which he was pursuing, and that he thought the stage was to keep to the easterly side of a fountain which stands near the turn. The testimony, however, is conclusive--in fact, is testified to by himself, as will appear later--that whatever may have been the original idea in this respect, it was but a fleeting one, for he testifies that he saw the stage make the turn to the west of the fountain, and that he still continued on his course. Assuming to be correct the testimony that the stage blew no horn and gave no warning, the negligence of the stage must be taken for granted by the lack of warning and the excessive speed, although, taking into consideration the speed that the appellant testifies he himself was proceeding and the distance he covered, they are not reconcilable with his estimate of the speed of the stage. But he having positively testified that the stage was making a speed of 35 to 40 miles an hour, the presumption must be that such was the fact. The negligence, then, of the respondent is established. The facts are probably best summarized by the following excerpts from appellant's own testimony: 'Q. Now as I understand your testimony, when you got to A, as indicated on this map, you saw the stage coming at B. A. Yes, sir.

'Q. How fast were you going at A? A. About six miles.

'Q. There was nothing between you and the stage as it approached, was there? A. No, sir; between the point A and where I first saw the stage.

'Q. There was nothing to obstruct your view from A to B? A. No, sir.

'Q. And I understand that you made this blue mark here, didn't you (indicating on plat)? A. Yes, sir.

'Q. This stage followed the blue mark line from B to C? A. Yes, sir.

'Q. You saw it coming on that course, didn't you? A. Yes, sir.

'Q. It practically follows the curve--the blue line practically follows the curve line, doesn't it--about the same course, doesn't it? A. Yes, sir.

'Q. You say at A you were going at six miles an hour? A. Yes, sir.

'Q. Did you keep up that speed? A. No, sir; I was slowing down.

'Q. What was your average speed from A to C--the accident occurred at C, didn't it? A. Yes, sir.

'Q. What was your average speed from A to C, what would you say? A. From seven to four miles an hour.

'Q. You say you were going six miles at A and four miles at C? A. About six at A and four at C.

'Q. Then what was your average speed between A and C? A. About five miles.

'Q. While you went from A to C the automobile came from B to C, didn't it? A. Yes, sir.

'Q. Now from A to C is at least one-third the distance from C to B, isn't it? A. Yes, sir. * * *

'Q. Did you know that the law required you to give the right of way to a vehicle coming from the right? A. Yes, sir.

'Q. But you kept going right on? A. Intending to stop at the fountain.

'Q. But the vehicle was coming from your right? A. Yes, sir.

'Q. And you kept going right on? A. Yes, sir.

'Q. You didn't come head on, did you? A. No, sir.

'Q. Your front wheel didn't hit the front end of the automobile, did it? A. No, sir.

'Q. Your motorcycle was hit on the right side, wasn't it? A. Yes, sir.

'Q. And when it was hit on the right side, it was faced over here toward this building, wasn't it (indicating)? A. I didn't see it.

'Q. You were on it? A. I don't know which way it was faced when it was hit. * * *

'Q. How far is it from C to the inside of the curve? A. About 22 feet. * * *

'Q. At all times as you came round there there was ample room between where the blue line for the travel of the bus was, for your motorcycle, wasn't there, to the right of the bus? A. For the automobile to pass.

'Q. To the right of the bus there was at all times ample room for you to operate your motorcycle, wasn't there? That is right? A. There was room.

'Q. Sure, 22 feet you say, the more the better. How much space do you require in which to operate your motorcycle? A. How long?

'Q. In width? A. About a foot and a half.

'Q. And there was nothing between C and the inside of the curve, was there? A. No, sir.

'Q. Now, going 5 miles an hour, how quickly could you stop your motorcycle? Instantly? A. In about a length.

'Q. How long is it? A. About five and a half feet.

'Q. You could have stopped in five and a half feet? A. Yes, sir.'

The question remains whether the appellant was guilty of contributory negligence, which would prevent his...