Thompson v. Collins

• Decision Date: 25 June 1926
• Docket Number: 19455.
• Parties: THOMPSON v. COLLINS et al.
• Court: Washington Supreme Court

247 P. 458

139 Wash. 401

THOMPSON v. COLLINS et al.

No. 19455.

Supreme Court of Washington, En Banc.

June 25, 1926

Appeal from Superior Court, King County; Douglas, Judge.

Action by George C. Thompson against Ina W. Collins and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Fullerton J., Tolman, C.J., and Mitchell, J., dissenting.

Poe, Falknor, Falknor & Emory, of Seattle, for appellants.

Stanley J. Padden and George F. Ward, both of Seattle, for respondent.

HOLCOMB J.

Respondent and invitee, in a car owned and driven by one Cysewski, was injured by a collision with a car owned by Ina W. Collins and driven by Fredrick B. Collins, on a street in Seattle on the evening of June 30, 1924, while it was still daylight. The cars collided at a place where there is an extraordinarily wide triangular street intersection at the junction of Fairview avenue, running north and south, and Valley street running east and west. The car in which respondent was riding, a Ford, was traveling easterly on Valley street approaching the intersection, while the Collins car, a Buick sedan, was coming down a hill on Valley street, approaching the same intersection at approximately the same time. Both streets were paved and were dry, and there was a wide space to the north and west of the intersection of Valley an Fairview streets, which was level and flush with the pavement, but was used generally for parking purposes and not commonly for traffic. White lines had been painted on the pavements of both streets in the middle in order to separate the right-hand and left-hand traffic when approaching the intersection and crossing the intersection of the streets. There was evidence on behalf of respondent to the effect that the Collins car ran down the hill on Valley street and towards the intersection at a rate approximating 30 miles per hour, and that instead of keeping within the traffic lines of Valley street at the point of the triangle, cut across the triangle diagonally so as to pass across it at about the center of the triangle, heading directly across the path of the car in which respondent was riding. The evidence of respondent is that Cysewski's car, when approaching the triangle intersection from the west, was going at about 15 miles per hour, and, perceiving that the Collins car was going across its path and to all appearances to pass to the east or south of the Ford and around behind it, the driver of the Ford turned slightly to his left so as to bring that car about astraddle of the white line. Just as he did so, the driver of appellant's car turned directly in front of the Ford, which in attempting to avoid a collision, turned back toward the right of the white line. At the same instant the driver of appellant's car also turned to the east, or to his left, and the two cars came together in a head-on collision.

There is also evidence to the effect that appellant's car, immediately before striking the Ford car, skidded a distance of about 18 feet, leaving a heavy skid mark on the dry pavement, marking the course of appellant's car diagonally across the triangle to about the center thereof before the collision.

Respondent charged negligence on the part of the driver of appellant's car in operating the car at an unlawful rate of speed in excess of that fixed by ordinance, namely, in excess of 12 miles an hour; failure to keep to the right, and cutting corners in violation of the ordinance; defective brakes; failure to keep his car under control; operating his car in a reckless manner so as to endanger the lives and limbs of other persons; and in not using reasonable care to avoid a collision with the car in which respondent was riding, when he could have done so by such care.

In order to controvert the theory of negligence on his part, the driver of appellant's car testified that he saw the Ford car when it was about 90 or more feet away, emerging from a line of cars and running on the wrong side of the paved portion of the street as to repondent, and dodging in and out in a zigzag way, described by the witness as 'shimmying' up the street as if out of control, on the west side instead of the east side, or his proper side of the street. He noticed that as respondent's car approached him another car coming in the same direction as it reached the side of the Ford and proceeded alongside of it in such a way as to put the Ford car 'in a pocket,' and so as to prevent it from turning back to its own side of the street out of the path of appellant's car. He also testified that he was going about 15 miles an hour, and could have stopped his Buick sedan in its tracks, or in 15 feet, and that he did stop it in 18 feet when he saw that the accident was unavoidable. Upon this development of the evidence, respondent showed that the ground to the right of appellant's car at the place in question was composed of a wide, open, hard, dirt space which, though used mostly for parking purposes, was also used for traffic, and onto which appellant, by merely turning his wheel, could have passed and driven over with ease and safety, and by so doing could have avoided collision with the Ford. It was then presented to the trial court as a situation calling for the application of the doctrine of last clear chance, since appellant, seeing the perilous position of respondent's car, made no effort to stop or turn to the right off the pavement and upon the open, unpaved, dirt space.

There was also evidence by disinterested witnesses to the effect that the two cars came together with their front ends on the westerly side of the street, which was the wrong side for the Ford car, and with the left-hand wheels of the Ford slightly out upon the unpaved portion. Appellant's car was upon the extreme right side (as to him) of the pavement.

The evidence also shows that r...