Thomson v. Schirber, 23165.

• Decision Date: 24 August 1931
• Docket Number: 23165.
• Citation: 164 Wash. 177,2 P.2d 664
• Parties: THOMSON v. SCHIRBER et ux.
• Court: Washington Supreme Court

2 P.2d 664

164 Wash. 177

THOMSON v. SCHIRBER et ux.

No. 23165.

Supreme Court of Washington

August 24, 1931

Department 1.

Appeal from Superior Court, Spokane County; Joseph B. Lindsley Judge.

Action by H. A. Thomson against Oscar F. Schirber and wife, in which defendants filed a cross-complaint. Judgment for plaintiff and defendants appeal.

Affirmed.

George M. Ferris and James Emmet Royce, both of Spokane, for appellants.

S Edelstein, of Spokane, for respondent.

MILLARD J.

Plaintiff brought this action to recover for personal injuries and damages to his automobile, resulting from a collision with the automobile of the defendants, who, by cross-complaint prayed recovery for personal injuries and damages to their automobile. The cause was tried to the court which found that the defendants' negligence was the proximate cause of the accident. From judgment for $500 in favor of the plaintiff, the defendants have appealed.

Appellants contend that they are entitled to an affirmative judgment in their favor as they did not drive their car in such a manner as to prevent the respondent's car from passing freely on the highway. Appellants also insist that respondent is not entitled to recover, as his negligence in driving at an excessive speed and failing to sound his horn was the proximate cause of the accident.

The collision occurred about 10 o'clock of the forenoon of September 23, 1929, on the Sunset highway about one-half mile west of Reardan. The appellants were proceeding in their automobile on that highway in a westerly direction at the rate of twenty to twenty-five miles an hour. Respondent was driving his automobile in an easterly direction on that highway at thirty-five to forty miles an hour. Respondent drove around a curve and entered the straight east and west stretch of pavement. He then saw the appellants' automobile eight hundred feet to the east. While at the time of the collision it was raining, the visibility was good. The paved portion of the highway was eighteen to twenty feet wide, with an expansion joint in the center. On each side of the pavement was a shoulder about three feet wide which could be utilized as a part of the highway. However, the shoulders of the highway were of clay and were wet and slippery the day of the accident. There were six eyewitnesses to the accident: Respondent and his guest, the two appellants and their guest, and a man who was driving an automobile towards the west about one hundred and fifty feet behind the appellants.

Respondent testified that he first saw appellants' car eight hundred feet or more to the east as he came out on the straightaway; that appellants' car was swaying back and forth or weaving across the highway; that when about two hundred feet distant he noticed appellants' automobile was on the south side or respondent's right side of the highway; that to avoid a collision he reduced the speed of his automobile to thirty-five miles an hour, driving off on the shoulder of the road, the two right wheels of his automobile being a foot or more off of the pavement on the right or south shoulder; that as the cars came together apparently appellants' car was swung over towards appellants' right side to avoid the collision. The left rear wheel and fender of the appellants' automobile struck the left front wheel and fender of the respondent's automobile. Respondent's guest did not testify. Appellants testified that they were on their right side of the road when the accident happened. They denied, as did their guest, that appellants' car was swaying from one side of the road to the other side. Appellant husband testified that he saw the approaching car of the respondent when it was one-fourth of a mile west of appellants' car. The witness who was driving behind the appellants testified that he did not notice the swaying of appellants' automobile; that the appellants' automobile was about half way over the center of the highway on the south side or respondent's right side of the highway when the two cars collided.

After the collision the whole car of appellants was south of the center of the highway. The right rear wheel was twenty-two inches south of the center of the highway. From the testimony as to the physical facts it appears that appellants' automobile was on the south side of the highway, appellants' left side; that to avoid colliding with respondent's car the appellants swung their car so that at the time of the impact their car was across the highway at an angle of about forty-five degrees and remained twenty-two inches south of the expansion line on the wrong side of respondent's right-hand side of the highway after the crash; that appellant's car proceeded forward six to ten feet following the collision and angled to the north towards appellants' right-hand side, one to two feet from the point of collision.

The tracks of the right wheels of respondent's automobile showed for a distance of one hundred and fifty to one hundred and seventy-five feet on the right shoulder of the road about one foot from the edge of the pavement. Those tracks distinctly disclosed the course of respondent's automobile to the time of the collision, the tracks then disappearing over the right shoulder of the highway where the respondent's car turned over and landed next to the embankment.

One of appellants' witnesses testified that immediately subsequent to the accident he appeared upon the scene; that he got out of his car to take the injured persons to the hospital; that he stopped his car, which was headed east and partly on the right shoulder of the highway in, as appellants contend, substantially the same situation as the respondent's car was Before it tried to come back on the paved portion of the highway; that he, traveling slowly, had no difficulty in passing the appellants' car as it was located on the highway after the accident, and that he was not required to leave the pavement to clear the appellants' car. This, argue appellants, establishes the fact that respondent had sufficient clearance if he had operated his car properly; that in attempting to regain the paved portion of the highway the respondent's car swerved and hit appellants' car because of the slippery condition of the shoulder and the paved portion of the highway and the excessive speed at which respondent was then traveling.

There was testimony, which the findings reflect the trial court believed, establishing the negligence...