Van Ry v. Montgomery, 35584
| Decision Date | 30 March 1961 |
| Docket Number | No. 35584,35584 |
| Citation | 58 Wn.2d 46,360 P.2d 573 |
| Court | Washington Supreme Court |
| Parties | Grace VAN RY, Respondent, v. John Doe MONTGOMERY and Grace Montgomery, his wife, comprising a marital community, and Bruce A. Montgomery, a minor, Appellants. Viola LOWNEY, Guardian ad litem for Kenneth Lowney, a minor, Respondent, v. John Doe MONTGOMERY et ux., et al., Appellants. Gust HEINE and Martha Heine, his wife, comprising a marital community, Respondents, v. John Doe MONTGOMERY et ux., et al., Appellants. |
Splawn & Bounds, Yakima, for appellants.
Chavelle, Millard & Springer, Seattle, for respondent.
The plaintiffs in these consolidated actions sued the defendants to recover damages for personal injuries which they sustained in an automobile accident, which occurred shortly after one o'clock on the afternoon of August 27, 1958, at a point approximately 22.2 miles west of Cle Elum on primary state highway No. 2.
The point at which the accident occurred was in a construction area, so designated by appropriate markers placed at intervals along the highway west of the scene of the accident. A flagman had signalled for eastbound traffic to stop on the highway, and two automobiles preceding the defendants' automobile had stopped in response to this signal--the second one being the automobile in which the plaintiffs were passengers. A third automobile, owned by the defendant Grace Montgomery and being driven by her son, Bruce A. Montgomery, did not stop and consequently struck the rear of the automobile in which the plaintiffs were riding.
The cause was tried to a jury which returned a verdict in favor of the defendants. A motion for a new trial was granted, the court having concluded that it had erred in giving an instruction on the doctrine of unavoidable accident and in refusing the plaintiffs' requested instructions pertaining to the duty of the operator of a 'following car.' From this order, the defendants have appealed, contending that there was no basis for the granting of a new trial.
While the plaintiffs moved for a directed verdict in the trial court, contending that the evidence clearly showed that the accident was caused solely by the negligence of the defendant driver, they do not urge the denial of this motion as error on this appeal but confine themselves to arguments in support of the order granting a new trial. Our review will therefore be limited to a consideration of the propriety of that order.
In determining whether the court properly submitted to the jury the question of whether the accident was unavoidable, the evidence must be viewed in the light most favorable to the defendants. The most favorable evidence was the testimony of the defendants themselves. The defendant Bruce Montgomery testified that he observed that they were approaching a construction area and also observed a sign directing a reduction of speed to thirty-five miles per hour. He did so reduce his speed, and when he had proceeded further along the highway, he observed the flagman ahead and the two automobiles which had stopped. He stated that the flagman then moved his sign in a way which he interpreted as a direction to proceed. At this point he had slowed his vehicle to twenty miles an hour. Observing the signal stop lights on the plaintiffs' car go off, he assumed that the cars would proceed and consequently did not apply his brakes. At this moment he looked off to his right and observed cement dump trucks approaching the highway in front of the cars ahead of him, and thought they were going to turn up onto the highway. His mother screamed and he applied his brakes, but too late to avoid hitting the car in front of him.
While the defendant driver...
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