Vercruysse v. Cascade Laundry Co.

• Decision Date: 05 January 1938
• Docket Number: 26877.
• Parties: VERCRUYSSE et ux. v. CASCADE LAUNDRY CO.
• Court: Washington Supreme Court

74 P.2d 920

193 Wash. 184

VERCRUYSSE et ux. v. CASCADE LAUNDRY CO.

No. 26877.

Supreme Court of Washington

January 5, 1938

Department 2.

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Action by Julius Vercruysse and wife against Cascade Laundry Company. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Danson Lowe & Danson and Clare Turner, all of Spokane, for appellant.

Robertson & Smith, of Spokane, for respondents.

ROBINSON Justice.

The plaintiffs, respondents here, brought this action against Cascade Laundry Company to recover damages with respect to injuries suffered by themselves, their automobile, and its contents in a collision with the defendant's delivery truck at the intersection of Apple way and Dearborn street, a few hundred feet east of the city limits of Spokane. The case was tried by jury. At the close of its case, the defendant moved for a nonsuit, later for a directed verdict, and, after the jury had returned a verdict for the plaintiffs in the sum of $1100, moved for judgment notwithstanding the verdict. On appeal, denial of each of these three motions is assigned as error.

On the morning of December 24, 1936, Mr. and Mrs. Vercruysse were driving into Spokane on Apple way, an east and west four-lane paved arterial highway, forty-five feet in width. Dearborn street comes into Apple way from the south, but does not cross it. The street is not improved by paving or sidewalks. At the point of intersection it is, in effect, sixty-four feet wide, for at the west side, where it joins Dearborn, there is a Shell service station, and on the east side a garage. It is sixty-four feet between these buildings. It was snowing heavily at and Before the time of the collision. The plaintiffs wanted to go to the station at the southwest corner of the intersection. This necessitated a left turn across the eastbound traffic lanes of Apple way. While making this turn and crossing the outside eastbound lane, their car was struck on its right side by the laundry truck which was proceeding east in its appropriate lane.

In their complaint, the plaintiffs alleged that the laundry truck was operated at a high, dangerous, and illegal rate of speed, and with its windshield covered with snow and ice to such an extent as to obscure the driver's vision. The defendant entered a general denial and set up affirmatively a general plea of contributory negligence. It became apparent early in the trial that defendant could very plausibly rely upon two claims in this respect: First, that the plaintiffs were guilty of negligence, because they made their left turn Before reaching the center of the intersection; and, second they saw, or must in law be taken to have seen, the defendant's truck approaching them from the west Before they began to make their left turn, and, instead of giving it the right of way, they turned directly into its path. The appeal is prosecuted upon the theory that these two acts of negligence were shown as a matter of law during the presentation of the plaintiffs' case, and had in no way been disproved at the close of all the evidence.

The assignments made have, necessarily, required us to minutely examine the evidence. It clearly shows that the defendant was guilty of negligence. There is also a great deal of evidence, perhaps a preponderance, tending to prove that the plaintiffs were guilty of contributory negligence but in our inquiry the question of preponderance is not material. Plaintiffs having received a verdict, we must, in passing upon the question Before us, not only regard all competent evidence in the record which is favorable to the plaintiffs as true, but must also give them the benefit of every favorable inference which may reasonably be drawn from such evidence. If, when so considered, the record reveals sufficient competent evidence to support the verdict, the judgment must be affirmed.

At what point did the plaintiffs make the left turn? Appellant contends that it is shown by the plaintiffs' own evidence that they made the turn at the east line of Dearborn street, and strongly stresses the following testimony quoted from its cross-examination of Mr. Vercruysse:

'Q. You mean just as you got at Dearborn Street? A. Yes.

'Q. That would be the east side of Dearborn Street? A. Yes, sir.

'Q. You came pretty near to a stop there? A. Yes.

'Q. Slowed down? A. Yes.

'Q. And looked ahead, did you? A. Ahead and opposite and back.

'Q. And the snow was pretty thick for you to see anything? A. Yes.

'Q. Then you turned over toward the service station from there? A. Yes.

'Q. At an angle? A. Yes.

'Q. In other words, you didn't drive down to the middle of the intersection, of course, to make the turn? A. I drove the way a decent driver is supposed to do.'

The last answer quoted is clearly not to be taken as evidence that Mr. Vercruysse started his turn in the center of the intersection. On the other hand, we do not think that the answer to the question about the middle of the evidence quoted, 'Then you turned over toward the service station from there?' must necessarily be taken as a flat admission that he started his turn at the east side of the street. One has to go back quite a little ways to definitely determine what 'there' refers to. The question was put after the attention of the witness had been diverted to a wholly different matter. On redirect examination, the witness was asked to step down to the map, which was being used, and indicate the point in the intersection to which he came Before starting to turn. This was objected to as improper redirect and the objection sustained. An argument ensued as to whether or not the witness had testified upon direct examination that he went up to the center of the street. The witness said he did. Defendant's counsel said that he had not. The matter proceeded as follows:

'Mr. Smith: All right. Take the stand. I want to ask you some more questions.

'Q. Now, Mr. Vercruysse, where was it, as you came up to Dearborn Street, where was it that you partly brought your car to a stop? A. Right in the center of the highway on the center line from Dearborn Street, on the intersection there; pretty close to that.

'Q. Then, as I understand you, you came up to the center of Dearborn Street and then turned to the left or south, is that right? A. Yes.

'Mr. Lowe: I object to that as improper redirect examination.

'The Court: Sustain the objection.

'Mr. Smith: Mr. Vercruysse, Mr. Lowe asked you where you stopped, if you turned from the east side of Dearborn Street. Did you understand that question, or did you not?

'Mr. Lowe: I didn't ask him exactly that question--if he turned from where he stopped, describe the place where he stopped.

'A. You want to know what? I was coming pretty near to a stop Before turning?

'Mr. Smith: Yes. A. It was in the center line right on the intersection with Dearborn station, with Dearborn Street.

'Mr. Smith: That is all.'

His only reference to this point on direct examination was not entirely clear and required clarification. 'Before you switch off you have to look what you were doing. I drove slowly to the center of the street. When I was there I pretty near came to a stop. No cars was in sight. I switched off on the southwest side of Dearborn.' It is not clear that the witness used the words 'I drove slowly to the center of the street' with reference to Dearborn Street. Context, not quoted, would seem to indicate that he meant Apple way; that is, that he was referring to his movement over to the south westbound lane.

Mrs. Vercruysse, who testified Before her husband was called, was not questioned on this point, but, in giving her testimony, twice stated that they made their turn 'right in the intersection,' whatever that may mean. We think that the court, in denying the motion for a nonsuit, correctly ruled on the matter.

'* * * As I said Before , the evidence is for the jury as to just where Mr. Vercruysse did turn. I understood him to testify at one time that he went beyond the center and another time when you cross examined, that he turned at the east side of the...