Van Cello v. Clark, 22188.

• Decision Date: 10 June 1930
• Docket Number: 22188.
• Citation: 289 P. 19,157 Wash. 321
• Parties: VAN CELLO v. CLARK et ux.
• Court: Washington Supreme Court

289 P. 19

157 Wash. 321

VAN CELLO v. CLARK et ux.

No. 22188.

Supreme Court of Washington

June 10, 1930

Department 1.

Appeal from Superior Court, Yakima County; A. W. Hawkins, Judge.

Action by Harvey Van Cello against W. F. Clark and wife. Judgment for plaintiff, and defendant named appeals.

Reversed with directions.

Rigg &amp Brown, of Yakima, and Reynolds, Ballinger, Hutson & Boldt, of Seattle, for appellant.

McAulay & Freece, of Yakima, and LeRoy McCann, of Wenatchee, for respondent.

BEALS, J.

One Harvey Van Cello, plaintiff herein, was, December 30, 1928 at approximately 3 o'clock in the afternoon, driving his Chrysler sedan down the hill leading to the easterly end of the Vantage Ferry bridge which crosses the Columbia river about 30 miles east of the city of Ellensburg. At the same time defendant W. F. Clark was driving his Buick automobile up the hill from the river toward the town of Quincy. The road up the hill from the bridge head has been carved out of the rocky hillside, up which it winds, in many curves, at a steep grade. On defendant's right as he was driving up the hill arose the rugged and precipitous hillside, the rocky wall in places standing close to the right-hand edge of the road, going up the hill; such being the case at the point of collision, where the road curves first a little to the left then to a greater degree to the right, around a promontory of solid rock through which the road was blasted. On defendant's left, beyond the narrow shoulder about a foot and a half in width, bordering the road proper, the ground fell away, sometimes in a straight drop of many feet, elsewhere in a steep slope covered with broken rock and other débris; the road being manifestly dangerous in the extreme and calling for the exercise of the highest degree of care on the part of persons traveling up or down the same. Mr. Van Cello, driving down the hill, found himself on his right-hand side of the road toward the open side thereof, next the steep and dangerous declivity above referred to. A light snow had fallen, although it was not snowing at the time of the collision. Defendant's car was equipped with chains, while the Chrysler sedan lacked this safeguard. As defendant was driving up the hill, he approached a curve to his right around a wall of rock which obstructed his view ahead within the distance of 200 feet. Defendant admitted that he was driving at between 20 and 25 miles per hour. On the other hand, plaintiff admitted that he was driving his car at an appreciable distance from the right-hand edge of the road. Whether the estimated distance of 4 feet, as testified to by plaintiff's witnesses, should be measured from the edge of the roadbed or from the brink of the declivity, may be a matter of dispute, but in any event it seems clear that plaintiff was not driving his car on the extreme outside of the curve which he was approaching to his left, as is required by section 6362-41, subd. (7), Rem. 1927 Supp., which reads as follows:

'It shall be the duty of every person operating or driving any motor or other vehicle * * * when approaching any curve of such highway where for any reason a clear view for a distance of three hundred feet cannot be had, * * * to keep to the extreme inside of all curves to the right and to the extreme outside of all curves to the left.'

It is also apparent that defendant was violating that provision of the statute which reads as follows:

'(b) Subject to the provisions of subdivision (a) of this section and except in those instances where a lower speed is specified in this act, it shall be lawful for the driver of a vehicle to drive the same at a speed not exceeding the following: * * *

'3. Fifteen miles an hour in traversing or going around curves or corners of a highway when the driver's view is obstructed within a distance of two hundred feet along such highway in the direction in which he is proceeding. * * *' Rem. 1927 Supp., § 6362-3.

The cars met head-on somewhere along the curve, the left front of plaintiff's car going down the hill striking the left front of defendant's car ascending the grade. It is evident that one or both of the machines must have been out of position and traveling on the left-hand side of the middle of the road.

As the result of the collision, plaintiff, Van Cello, was injured and his automobile damaged. Arthur S. Parsons, who was riding with plaintiff, suffered severe injuries, and defendant Clark was hurt, his machine being also damaged. Plaintiff, Van Cello, brought this action to recover damages for injuries to his person and his machine. Arthur S. Parsons brought another action against defendant seeking to recover damages for injuries to his person, and defendant Clark cross-complained against plaintiff, Van Cello, asking judgment for injuries to his person and car. The wife of defendant Clark was made a party defendant, but she was not present at the time of the accident, and in this opinion Dr. Clark will be referred to as though he were the sole defendant. The two actions were consolidated for trial; it being apparently admitted that any negligence on the part of plaintiff Van Cello, should be imputed to plaintiff, Parsons, and that, if Van Cello cannot recover, neither can Parsons. The actions were tried to a jury, which returned separate verdicts in favor of Messrs. Van Cello and Parsons, and, from judgments entered upon these verdicts, defendant Clark appeals.

By stipulation of the parties, one statement of facts only has been filed, and the cases have been argued together.

From this point appellant's appeal from the judgment in favor of Mr. Van Cello will be considered.

Appellant contends that the trial court erred in refusing to grant his motion for a directed verdict at the close of respondent's case, in denying his motion for judgment in his favor notwithstanding the verdict, and in denying his alternative motion for a new trial. Error is also assigned upon the refusal of the trial court to give two instructions requested on behalf of appellant.

The first two assignments of error will be discussed together. It is apparently conceded that at the point of collision neither driver had, on...