Sweazey v. Valley Transport, Inc.
| Decision Date | 28 November 1940 |
| Docket Number | 27751. |
| Parties | SWEAZEY v. VALLEY TRANSPORT, Inc., et al. |
| Court | Washington Supreme Court |
Department 2.
Action by Ralph S. Sweazey, administrator of the estate of R. Lawrence Faye Sweazey and another, against the Valley Transport, Incorporated, and another, to recover damages for the wrongful death of the deceased in a collision between an oil truck and an automobile. Judgment for plaintiff, and defendants appeal.
Reversed and cause remanded, with instructions.
In wrongful death action, where general damages are alleged, and in all probability it will be difficult for the jurors to arrive at an exact amount in the event damages are allowed, a cautionary instruction on a quotient verdict is proper in order to avoid possibility of such a verdict being reached.
Appeal from Superior Court, Yakima County; Dolph Barnett, Judge.
Poe Falknor, Emory & Howe, of Seattle (Kenneth C. Hawkins, of Seattle, of counsel), for appellants.
Padden & Moriarty and P. O. D. Vedova, all of Seattle, for respondent.
This action was instituted by Ralph S. Sweazey, administrator of the estate of R. Lawrence Faye Sweazey and Laura Finck Sweazey, deceased, to recover damages against the defendants, Valley Transport, Inc., and Faye Sparger, for the alleged wrongful death of Lawrence Sweazey and Laura Sweazey, husband and wife. The action was brought for and on behalf of, and for the benefit of, the three minor children of Mr. and Mrs. Sweazey, namely: Margaret Joanne Sweazey, age five years; Elizabeth Anne Sweazey, age seven years; and Maxine Louise Sweazey, age nine years; and for and on behalf of the estate of Mr. and Mrs. Sweazey.
The death of Mr. and Mrs. Sweazey occurred as the result of a collision between an oil truck and semi-trailer, owned and operated by defendant Valley Transport, Inc., and being driven at the time by defendant Faye Sparger, an employee, and an automobile owned by Mr. and Mrs. Sweazey, and being driven at the time by Lawrence Sweazey, deceased. The collision occurred near Blue Lake, in Douglas county, Washington, on August 10, 1937, at about the hour of 12:20 P. M. The highway upon which the accident occurred is a state highway, having an oiled surface of about twenty feet, and running northeasterly and southwesterly around the west and north side of the lake. On the day of the accident, Mr. Sparger, with a full load of gasoline, was driving along this road toward Coulee City, which would place him on the side of the road next to the lake. Mr. and Mrs. Sweazey with their three minor children, above named, were driving southwesterly along this road toward Soap Lake. The truck and car came together, and Mr. and Mrs. Sweazey were killed.
The complaint alleges that the defendants were negligent in the following particulars:
(1) That defendant's truck was of excessive width, length and weight, and because thereof was a dangerous instrumentality to be operated along and upon the highway;
(2) That defendant's truck was being operated on a curve on the highway in such a manner that the truck extended over the center of the highway and into that portion of the highway in which the automobile being driven by Lawrence Sweazey was entitled to be, and was being, operated;
(3) That the truck was being operated at a high, dangerous and unlawful rate of speed, to-wit, at a speed in excess of forty miles an hour;
(4) That the operator of defendant's truck failed to extend to the Sweazey car one-half the highway;
(5) That the driver of the oil truck failed and neglected to keep the truck under control, or to keep a reasonably careful lookout ahead to determine the condition of the highway, and the position of other vehicles on the highway;
(6) That the operator of the truck, when he saw, or by the exercise of reasonable care should have seen, that a collision was imminent, failed and neglected to exercise reasonable care to avoid a collision, when by the exercise of reasonable care he could have done so.
Defendants by their answer deny the allegations of negligence in plaintiff's complaint, and allege affirmatively that if Mr. and Mrs. Sweazey died as a result of the accident, their death was proximately caused and contributed to by the careless acts and negligence of Lawrence Sweazey.
The cause came on for hearing Before the court and jury, and thereafter, on February 3, 1939, the jury returned a verdict in favor of plaintiff. Motions for judgment notwithstanding the verdict and for new trial were timely made and denied, and on May 3, 1939, the court entered judgment on the verdict, and this appeal by defendants followed.
In view of the conclusion we have reached that a new trial must be granted in this case, it will not be necessary to set out the facts as established by the evidence, only in so far as may be necessary to a discussion of the assignments of error.
While appellants have argued assignments of error Nos. 1, 2, 3 and 4 under one heading, we shall discuss them separately.
The first assignment of error is based upon the admission by the court of Exhibit No. 36. Theodore Wilson, who was driving an educational tour bus, which had been following the oil truck for some miles, was called as a witness by respondent, and testified to the effect that he had tried to pass the oil truck several times Before the point of the accident was reached, but could not because the truck was so far over toward the center of the highway. This witness further testified to the effect that just Before the collision, and as the truck was going around a curve, the truck was over too far toward the center of the road; that it was traveling about forty miles an hour. On cross-examination, the witness admitted signing the following statement, at Spokane Washington, the day after the accident:
Mr. Wilson also admitted having made statements at the time of the accident to E. W. Schwellenbach, then prosecuting attorney and coroner of Grant county, and to Floyd Hansen, deputy sheriff of Grant county, to the same effect as those contained in his statement made at Spokane. The witness testified that he made the statements to Mr. Schwellenbach and Mr. Hansen and the one in Spokane because his boss, C. V. Ress, told him to say anything so that he would not be held as a witness and thus delay the caravan. It appears that there were several bus loads of teachers from the middle west touring the country, and the bus driven by Mr. Wilson was one of the caravan. It does not appear that any officer attempted to detain Mr. Wilson.
After the introduction of the statement made by Wilson in Spokane, which was Exhibit No. 35, respondent offered Exhibit No. 36, which was a statement made by Wilson at Coshocton, Ohio, on September 11, 1937, at the request of Mr. Sweazey, respondent herein, who went to Coshocton to interview Wilson and secure a statement. This statement was as follows:
'Coshocton, Ohio
'September 11, 1937.
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... ... 319, 324, 296 S.W. 132, 134[1, 2]; ... Annotations: Sweazey v. Valley Transport, Inc., 6 ... Wash.2d 324, 107 P.2d 567, 111 P.2d ... ...
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