Waller v. Smith

• Decision Date: 29 August 1921
• Docket Number: 16380.
• Citation: 200 P. 95,116 Wash. 645
• Court: Washington Supreme Court
• Parties: WALLER v. SMITH.

200 P. 95

116 Wash. 645

WALLER v. SMITH.

No. 16380.

Supreme Court of Washington

August 29, 1921

Department 1.

Appeal from Superior Court, Pierce County; M. L. Clifford, Judge.

Action by H. J. Waller against Kay Smith. Judgment for defendant and plaintiff appeals. Affirmed.

Lyle Henderson & Carnahan, of Tacoma, for appellant.

Wm. H Pratt, of Tacoma, for respondent.

FULLERTON J.

In this action the appellant, Waller, sought to recover in damages from the respondent, Smith, for injuries to his automobile. From an adverse judgment entered by the trial court on a trial of the action without a jury, Waller appeals.

On conflicting evidence, the court found the facts as follows:

'I. That the plaintiff herein is the owner of a certain Buick automobile.

'II. That during the months of September and October 1919, the defendant was engaged in logging operations in the vicinity of Brinnon, Wash., and removing the timber upon certain land belonging to the United States government under contract held with the government for removing the same. That adjacent to the place where said defendant was conducting his logging operations was an abandoned road, which has been blocked up and unused at that point for a period of some four years and the used road transferred some distance therefrom; both of said roads and said logging operations being located on United States government property.

'III. That on or about the 23d day of September, 1919 the plaintiff parked his Buick automobile on the unused part of said road adjacent to where the defendant was conducting said logging operations, and the defendant, at the time the plaintiff parked his said automobile at said place, was then engaged in the cutting of trees in said logging operations but a little distance from said place, and said plaintiff, after so parking his automobile, left and went on a hunting trip in the mountains and was gone for a period of 10 days, and during said time left his said automobile there for said period unwatched and unattended; and that at the time the plaintiff so left his automobile in said position he knew of said logging operations and that the same were being carried on adjacent to said place and knew of the danger of falling trees in the position where he had left his said automobile, and that during the time said automobile was left standing in said place one of the employees of the defendant was cutting down a tree in the

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