Tschirley v. Lambert

• Decision Date: 03 September 1912
• Court: Washington Supreme Court
• Parties: TSCHIRLEY v. LAMBERT. TSCHIRLEY et ux. v. SAME.

126 P. 80

70 Wash. 72

TSCHIRLEY v. LAMBERT.

TSCHIRLEY et ux. v. SAME.

Supreme Court of Washington

September 3, 1912

Department 2. Appeal from Superior Court, Spokane County; John D Hinkle, Judge.

Two actions--one by Robert Tschirley, by his guardian ad litem and the other by Paul Tschirley and wife--both against E. V Lambert. Judgments for plaintiffs, and defendant appeals. Affirmed.

Graves, Kizer & Graves, for appellant.

Laughon & Lavin, of Spokane, for respondents.

MORRIS J.

These two actions were consolidated in the lower court for the purpose of trial, and as they both grow out of the same facts, and present the same question on appeal, and are to be reviewed on the same statement of facts, they will be so treated here, although separate judgments have been entered, from which separate appeals have been taken.

Robert Tschirley is a minor, 18 years of age. The other plaintiffs are his parents. The actions were brought to recover damages for injuries sustained by the minor plaintiff in a collision with appellant's automobile. No error is claimed upon the admission or rejection of testimony, or in the giving or refusal of instructions to the jury; the only error urged being the denial of appellant's motions for judgment notwithstanding the verdicts against him. This presents but one question: Is the contributory negligence of the minor respondent so clearly established as to make it the duty of this court as a matter of law to set aside the verdicts? To which may be added the further inquiry: Is there sufficient evidence of the appellant's negligence to support the verdict? In addition to the general verdict, 10 special interrogatories were presented to the jury, which, together with the record, establish this state of facts:

The accident happened on Sunday evening, at about 6:30 o'clock, of May 29, 1910, at a place known as Vera, some distance east of Spokane. The highway is 60 feet wide, and is known as Sprague avenue. At a point on this avenue, near where it is intersected by a lane or roadway, is a country store. At about the store Sprague avenue divides into two roadways; one proceeding along the north line of the avenue and the other along the south line. Extending along the south roadway, and from 10 to 12 feet from it were loosely piled stones; the piles being about 2 feet high at the center and about 2 or 3 feet in width. Among these stones telephone poles were erected at about the usual distance apart. Between these two traveled roadways the ground was rough and uneven, so that travelers driving vehicles of any description would take one or the other of the roadways. As the appellant, driving his automobile, approached the intersection of these two roadways from the east, driving at from 15 to 20 miles an hour, he observed and was observed by the minor plaintiff, whom we will hereafter refer to as respondent, who was watching some of his friends, who were playing ball along the north roadway at about the point of the store; respondent being stationed some 20 feet west of the store. The automobile, when first seen by respondent, was about 300 feet east of the store, and was observed by him as he mounted his bicycle to go after the ball, which had been batted in a southwesterly direction across the...