Thompson v. City of Seattle

• Decision Date: 20 February 1953
• Docket Number: No. 32176,32176
• Citation: 253 P.2d 625,42 Wn.2d 53
• Court: Washington Supreme Court
• Parties: THOMPSON, v. CITY OF SEATTLE.

Page 53

42 Wn.2d 53

253 P.2d 625

THOMPSON, v. CITY OF SEATTLE.

No. 32176.

Supreme Court of Washington, Department 1.

Feb. 20, 1953.

A. C. Van Soelen and Arthur Schramm, Seattle, for appellant.

Barker & Day and William J. Walsh, Jr., Seattle, for respondent.

SCHWELLENBACH, Justice.

This is an appeal from a judgment entered upon the verdict in a wrongful death action arising out of a collision between a city transit bus and a motorcycle operated by the decedent.

Genesee Street in Seattle runs in an easterly and westerly direction and is forty-two feet wide from curb to curb. It is intersected by Thirty-sixth Avenue South, which is twenty-five feet wide from curb to curb, and which runs practically in a northerly and southerly direction. Rainier Avenue is one block west of and parallel to Thirty-sixth Avenue South. There is quite a wide curve on Rainier Avenue, in both a northerly and southerly direction, where Genesee Street meets it.

June 7, 1950, John C. McKenzie, a city transit operator, was operating the Seward Park shuttle from the intersection of Rainier and Genesee to Seward Park Avenue and return. At 6:40 p. m. he was returning, traveling west on Genesee. The bus was empty. His intention was to turn left and south on Thirty-sixth Avenue South for a distance of one block, then west on block to Rainier, one block north on Rainier and then east on Genesee.

He testified that as he approached Thirty-sixth he noticed one car traveling east on Genesee. It was near the alley, which is located 140 feet west of Thirty-sixth and about midway between Rainier and Thirty-sixth. He noticed no other vehicles in front of him on Genesee. He stopped at Thirty-sixth to permit the eastbound car to proceed and then started to turn left. As he was turning, and while partially on the left side of Genesee, a collision occurred between the bus and the motorcycle being driven in an easterly direction by Robert Thompson. Thompson was thrown twenty-nine feet six inches in a southerly and slightly easterly direction. He was instantly killed. The motorcycle traveled forty-two feet eight inches in an easterly and partially southerly direction.

The point of impact was determined from the debris, which was strewn in a southerly direction. The debris started at a point nine feet seven inches from the south curb of Genesee and seven feet west of the east curb line of Thirty-sixth. The bus traveled a short distance after the impact. The left front of the bus showed marks of the collision, as did the left side of the motorcycle, although the front wheel of the motorcycle was unmarked.

The widow sued the city for damages to herself and her four children. The jury awarded her the sum of $18,791.75; and awarded James, age 8, $4,180; Thomas, age 6, $4,687; Loren, age four and one-half months, $5,728; and Diana, who was born after the father's death, $5,805; or a total of $39,191.75.

The bus driver was not present at the trial and his deposition was read. He testified that he had to be more careful while making that turn, in watching out for traffic on Thirty-sixty, because the bus occupied most of the intersection. We quote his testimony with reference to the motorcycle:

'Q. Did you see the motorcycle approaching then? A. I heard it and saw it just about the same time, just a split second in between.

'Q. And what did you do? A. Came to a complete stop.

'Q. Did you see the motorcycle approaching? A. After I heard it, yes.

'Q. Did you observe the motorcycle rider at any time between then and the point of collision? A. Oh, just a couple of seconds at the most.

'Q. Could you see in what direction he was looking? A. Well, just the quick glimpse that I did get of him, he seemed to have his head down.

'Q. What portion of his head could you see? A. Well, the top of his head.'

The witness marked two drawings on Exhibit 15, a map of the premises: B-1, where the bus stopped at the intersection; and B-2, where the bus stopped at the time of the collision. He testified:

'Q. Where was the motorcycle what you heard it and saw it? A. Just on the east side of the alley. [Note: Alley 140 feet west of Thirty- sixth.] * * * Now where were you at the time you saw it? At B-2? A. Yes.

'Q. Let's mark this M-1. [Location of motorcycle just east of the alley.] A. The bus hadn't moved more than a quarter of a length of the bus from the time I saw the motorcycle up until the time I stopped.

'Q. A quarter of the length of the bus would be a matter of six or seven feet? A. Yes.

'Q. By the time you reached this point do you know where the motorcycle was then? A. No, I don't know. It wasn't, I wouldn't say, more than three seconds from the time I saw him until the time of the collision.

'Q. And where was your bus at the time of the collision? A. At B-2.

'Q. That is where you stopped? A. Yes.'

He also testified:

'Q. * * * Did you have an opportunity to observe the speed of the motorcycle before the accident? A. Just a quick estimate was all.

'Q. Did you form an opinion as to his speed? A. I did; about between 40 and 45.

'Q. Between 40 and 45. Did the motorcycle change its course? A. No, sir.

'Q. How much room was there between the left front corner of your bus and the south curb line or paved margin of Genesee Street? A. Oh, between 12 and 15 feet.

'Q. Was there any obstruction in that space between you and the motorcycle rider? A. No, sir.'

However, Officer Masar testified that he was two blocks away and immediately went to the scene of the accident; that the bus driver told him he did not see the motorcycle until the time of the impact. He testified that the bus driver was upset, but that he became more upset later. Mrs. Reta Devlin testified that she heard the bus driver tell Officer Masar that he was coming along Genesee Street, and started to make his left-hand turn. He said, 'I looked up, and there he was.' She did not hear him say anything about an automobile proceeding ahead of the motorcycle. She heard all of the conversation with Officer Masar. Under cross-examination McKenzie testified that he didn't remember telling the officer that he didn't see the deceased until the collision, but that he may have.

Jack Herrington testified that immediately before the accident he came out of the Genesee Tavern, which is west of the alley between Rainier and Thirty-sixth; that he walked west to a stop sign on the curve of Rainier Avenue; that he heard the motorcycle coming down Rainier and watched it intermittently until it got to the alley; that in a little while he heard the collision. He could not tell how much time elapsed from the moment he last saw the motorcycle at the alley until the collision. He estimated the speed of the motorcycle at between fifty and fifty-five miles an hour when it was coming around the curve from Rainier to Genesee. He testified under cross-examination that after first seeing the motorcycle coming down Rainier he walked leisurely back to the tavern door, glancing backward from time to time; that that was a distance of thirty feet; that by the time he got back to the tavern door the motorcycle was at the alley. He had never driven a motorcycle, but had driven cars. He testified that the motorcycle was in the center lane when he saw it.

George E. DeFoe testified that he was waiting on the south side of Genesee, a short distance west of the alley for the shuttle bus involved in this action; that when the motorcycle came around the curve from Rainier to Genesee, it swung out, and the driver was leaning at a twenty to thirty degree angle, with his head down. He would not estimate the speed. He said that he didn't like motorcycles or automobiles, but would judge that it was going fast. He testified: 'These fellows coming on a motorcycle, they may be coming around ten, twenty or thirty.'

Appellant makes the following assignments of error. The trial court erred:

1. In denying defendant's challenge to the sufficiently of the evidence.

2. In denying motion for judgment notwithstanding the verdict.

3. In denying motion to strike the actuary's testimony of gross earnings.

4. In giving Instruction No. 4.

5. In giving Instruction No. 6.

6. In refusing to give requested instruction on duty of favored driver.

7. In refusing to give requested instruction that ordinance violation is negligence as a matter of law.

8. In denying motion for new trial.

9. In entering judgment upon the verdicts.

The challenge to the sufficiency of the evidence at the close of plaintiff's case was denied, and upon denial the city put in its evidence. Assignment of Error No. 1 is therefore without merit.

In White v. Burke, 31 Wash.2d 573, 197 P.2d 1008, 1010, we quoted the rule laid down in Simmons v. Cowlitz County, 12 Wash.2d 84, 120 P.2d 479:

"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. * * *"

The jury would have been justified, because of the testimony of Officer Masar and Mrs. Devlin, and the admission of the bus driver, in not believing the testimony of McKenzie as to the speed of the motorcycle. Herrington estimated the speed at between fifty and fifty-five miles an hour. DeFoe judged that it was going fast, and then said: 'These fellows coming on a motorcycle, they may be coming around ten, twenty or thirty.' Clearly the estimates of these two witnesses were conjectural. The minds of reasonable men could...