Swanson v. Gilpin, 29772.

• Decision Date: 31 May 1946
• Docket Number: 29772.
• Parties: SWANSON et ux. v. GILPIN et al.
• Court: Washington Supreme Court

169 P.2d 356

25 Wn.2d 147

SWANSON et ux. v. GILPIN et al.

No. 29772.

Supreme Court of Washington

May 31, 1946

Department 1

Action by Eric J. Swanson and wife against Thomas Gilpin and Leo Hardy and wife to recover for personal injuries sustained by the wife of Eric J. Swanson in an automobile accident. From the judgment, Thomas Gilpin appeals.

Affirmed.

Appeal from Superior Court, Snohomish County Ralph C. Bell, judge.

John D MacGillivray, of Tacoma, for appellant.

Welts &amp Welts, of Mount Vernon, for respondent.

MILLARD Justice.

The course of Swalwell Road, which is two miles long and approximately twenty feet, wise, is northerly and southerly. On August 7, 1940, Snohomish county was resurfacing that road with oiled gravel. A windrow of loose gravel four feet wide at the base and rising to an apex of two feet was eighteen to twenty-four inches west of the center of the highway; that is in addition to the east half, or ten feet of highway, there was an additional space of eighteen to twenty-four inches west of the center of the highway open for travel. This road was closed to traffic except for ingress and egress of persons residing along the road. To direct and regulate movement of the seven road graders and the automobile traffic permitted on that road one flagman was stationed at the north end of the road, one was placed at the south end of the road and a third flagman was stationed in the center of the road directly in front of the residence of Leo Hardy and wife. At 9:00 a. m., August 7, 1940 Thomas Gilpin, a county commissioner for Snohomish county who had been called to investigate the rupture of a water line, drove in on to the Swalwell Road from the south in a county automobile and drove northerly on the east half of the road. On arriving at the Hardy residence he was stopped by the flagman and directed to drive his car off of the road. He parked his vehicle at an angle facing north immediately south of the Hardy residence on the shoulder and east edge of the road, which left seven or eight feet of clearance for travel between his car and the gravel ridge or windrow. On or about the time Gilpin parked the county automobile Leo Hardy drove in from the north, backed into the entrance to his home on the east side of the highway and parked his Ford sedan, which faced directly west, five or six feet north of the front end of the county car and fifteen feet from the east edge of the highway. Within twenty to thirty minutes after the parking of the Hardy car Mrs. Hardy emerged from her home with the intention of driving her car out to the highway and proceeding south to Everett. She placed her automobile in low gear, proceeded straight ahead at three to five miles an hour, passed the north end of the county car and continued until the front wheels of her car entered into the ridge or gravel windrow on the west half of the road. The north end of the gravel windrow was opposite the parked car and extended south. Ellen Swanson who was on the west side of the road opposite the parked county automobile started with her son across the roadway to the east. In reaching a point opposite the parked county car Mrs. Swanson would have to continue in a southerly direction on the east side of the road walking along the west side of the car to the rear thereof; thence behind the parked car to the east edge of the road; thence south. In doing this the parked car entirely hid Mrs. Swanson from the view of the operator of the Hardy car driving out onto the road. As stated Before , Mrs. Swanson walked along the west side of the parked county car, thence behind it to the east side of the road, thence south. When on the east edge of the road and ten feet south of the rear of the Gilpin car, which was heading north, Mrs. Swanson was struck by the automobile operated by Mrs. Hardy. When Mrs. Hardy entered into the gravel windrow on the west half of the roadway she started to turn sharply to the left or south and as she did this the rear end of her car slid to the left, the left rear fender of her car scraping the bumper of the parked county car. Mrs. Hardy accelerated the speed of her car and continued to turn to the left and south. In attempting to pass through the opening west of the parked car and east of the gravel windrow the right front wheel of Mrs. Hardy's car struck the loose gravel. This was at the point opposite the back end of he Gilpin car where the angle at which Gilpin parked made the opening the narrowest. It would appear that she started from a position approximately six feet in front of the parked county car at right angles to it and back a car's length. As she proceeded forward she made a swinging left utilizing the six feet space north and south between her and the county car in turning onto the road to go south. It would be difficult, if not impossible, to see how narrow the passage way was at the rear of Gilpin's car until in turning the driver's seat in the Hardy car was approximately flush with the west edge of Gilpin's car which would then no longer obstruct the view of the operator of the Hardy car. At that time the front of the Hardy car would be less than a car length from the rear of the Gilpin car. Mrs. Hardy could not see Mrs. Swanson who was ten feet behind the Gilpin car at the east side of the road as the Gilpin car along the west side of which Mrs. Hardy was proceeding his Mrs. Swanson from Mrs. Hardy's view until Mrs. Hardy arrived on the east side of the highway south of the Gilpin car. Mrs. Hardy applied her brakes but she was unable to avert striking Mrs. Swanson.

An action was instituted by the marital community composed of Mr. and Mrs. Swanson against Thomas Gilpin and the marital community of Leo Hardy and wife to recover for the personal injuries sustained by plaintiff wife in the accident described.

The alleged negligence of defendant Gilpin was in parking the county car partially on the travelled portion of the highway in violation of the statute (Rem.Rev.Stat. § 6360-110) thereby obstructing traffic in so narrowing the usable portion of the roadway as to render it hazardous to one driving or attempting to drive automobiles thereon. Plaintiffs allege that Mrs. Hardy was negligent in not having her automobile under reasonable and proper control and in attempting to pass through the narrow opening between the portion of the roadway under repair and the automobile of defendant Gilpin at a rate of speed which was unreasonable under the then existing circumstances. Trial of the cause to the court sitting with a jury resulted in a verdict in favor of the plaintiffs and against the defendants. Motions for judgment notwithstanding the verdict and for new trial were overruled, and from a judgment entered on the verdict Thomas Gilpin appealed.

It is conceded by appellant Gilpin that in parking partially on the travelled portion of the highway he violated the statute (Rem.Rev.Stat. § 6360-110) hence he was guilty of negligence per se; however, it is argued that that negligence was not a proximate cause of the accident out of which this action arose. It is urged that the illegal parking of the Gilpin automobile created a passive and obvious condition which was at best a circumstance or remote cause, and that the subsequent, intervening negligence of Ethel Hardy was the direct, efficient and proximate cause of the injury sustained by respondent wife.

Counsel for respondents insist that the negligent acts of appellant Gilpin and of defendants Hardy were contributing causes and proximate factors in the happing of the accident and impose liability upon both appellant and defendants in view of the fact, found by the jury, that Mrs. Hardy did not become apprised of the danger until her own negligence added to that of the existing...