Tomblinson v. Wise, 23192.

• Decision Date: 07 July 1931
• Docket Number: 23192.
• Citation: 163 Wash. 341,300 P. 1056
• Parties: TOMBLINSON v. WISE et ux.
• Court: Washington Supreme Court

300 P. 1056

163 Wash. 341

TOMBLINSON v. WISE et ux.

No. 23192.

Supreme Court of Washington

July 7, 1931

Department 2.

Appeal from Superior Court, Whitman County; R. L. McCroskey, Judge.

Actions consolidated for trial, by Martha A. Tomblinson and by J. T Irwin and wife against W. B. Wise and wife. From a judgment of dismissal, plaintiffs appeal.

Affirmed.

W. W Clarke, of Spokane, for appellants.

McCarthy & Edge, W. E. Du Puis, and Leo F. Wilson, all of Spokane, and F. L. Stotler, of Colfax, for respondent.

MILLARD J.

On May 30, 1930, a Ford coupé operated by J. T. Irwin and at the time occupied by Mr. Irwin, his wife, and Mrs. Martha A Tomblinson, collided on the Inland Empire Highway, near Oakesdale, with a Buick sedan operated by W. B. Wise and at the time occupied by Mr. Wise and his wife. To recover for the injuries sustained in that accident, J. T. Irwin and wife instituted one action and Mrs. Tomblinson commenced another action against Mr. Wise and wife. The trial of the causes, which were consolidated, to the court resulted in findings that the collision was occasioned by an accident for which none of the parties was blameworthy. Judgment of dismissal disallowing costs to either party was entered. From that judgment the plaintiffs appealed.

The only eyewitnesses of the accident were the parties involved therein. The collision occurred on a detour between Spangle and Rosalia about eight miles south of Rosalia. The detour is an oil surfaced road eighteen feet wide. It fairly appears that the car of appellants, which was proceeding in a southerly direction, was traveling at the rate of thirty to thirty-five miles an hour and that the car of respondents, which was traveling northward, was proceeding at a speed of thirty to forty miles an hour. The view of the drivers was unobstructed in each direction for two hundred feet. While there was a slight rainfall at the time the collision occurred about 10:30 in the morning, the cars approaching each other could be seen by the respective drivers without difficulty.

Appellants testified that when the cars were from sixty-five to several hundred feet apart the left front wheel came off of the Ford coupé, causing the coupé to veer sharply across the highway to the left, or appellant's wrong side of the highway, a distance of fifteen feet; that the coupé stopped on the left side of the highway pointed south and directly in the path of the automobiles traveling to the north. The wheel rolled down the road south a distance estimated at from sixty-five to one hundred and forty feet, finally resting on the left-hand shoulder of the highway (the east side of the highway, or respondents' right side of the highway) and off the main traveled portion thereof. Appellants further testified that respondents made no effort to go around appellants' car to the left and so avoid a collision, although there was sufficient room on that side to do so; that respondents' automobile was from fifty to three hundred feet away when appellants' car stopped on the lefthand or wrong side of the highway.

Respondent husband testified that he was not put on notice that anything was wrong until he was fifty to sixty feet south of appellants' automobile; that he then noticed a wheel coming down the road towards him and busied himself in an attempt to dodge same; that he saw appellants' car veering across to respondents' side of the road; that appellants' car, which was then twenty-five or thirty feet distant from the car of respondents, then turned back on the road as though Mr. Irwin was attempting to get the car back on appellants' right side of the road; that he immediately applied his brakes (when twenty-five or thirty feet to the north of appellants' car), but the collision was unavoidable. Mrs. Wise testified that she was 'not paying much attention'; that she first saw the Ford coupé when it was turned across the road and sixty-one feet distant; that she did not see the loose wheel and did not see her husband dodge it.

Respondent husband did not discover until fifty to sixty feet distant from appellants' automobile that anything unusual was happening. The car of appellants was then veering across the highway, appellants' left or wrong side of the highway. The car of respondents, traveling at thirty-five miles an hour, was approximately one second's time south of the car of appellants, who were also traveling at approximately the same speed. That one second of time was being split by the on-coming car of appellants. Appellants were then attempting to right their car and place it on the west or appellants' right side of the road. During this fraction of time the respondents, while dodging the wheel, had traversed twenty-five to thirty feet of the intervening space. Then the brakes were applied by respondent husband, who then was apprehensive that the appellants' car would not regain the right side of the highway. ...