Warner v. Keebler

• Decision Date: 29 September 1939
• Docket Number: 27472.
• Citation: 94 P.2d 175,200 Wash. 608
• Parties: WARNER et al. v. KEEBLER et ux.
• Court: Washington Supreme Court

94 P.2d 175

200 Wash. 608

WARNER et al. v. KEEBLER et ux.

No. 27472.

Supreme Court of Washington

September 29, 1939

Department 1.

Action by Alice Warner, a minor, by her guardian ad litem, E. C Warner, and E. C. Warner, individually, against Gordon J Keebler and Dorothy Keebler, his wife, and the marital community composed of both of them, for personal injuries received by plaintiffs and for damages to the automobile of E. C. Warner in an automobile collision, wherein defendants filed a cross-complaint. From a judgment in favor of the minor plaintiff against defendants but denying recovery to E C. Warner, individually, and denying recovery to defendants on their cross-complaint, defendants appeal and E. C. Warner individually, cross-appeals.

Affirmed on appeal and reversed on cross-appeal, with directions.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Ballinger, Clark, Mathewson & Force, of Seattle, for appellants.

Ballinger, Hutson & Boldt, of Seattle, for respondents.

JEFFERS Justice.

This action was brought by Alice Warner, a minor, by her guardian ad litem, E. C. Warner, and E. C. Warner, individually, against Gordon J. Keebler and Dorothy Keebler, his wife, to recover damages for personal injuries received by plaintiffs, and also for damages to the automobile of E. C. Warner, as the result of a collision between a car driven by plaintiff E. C. Warner, in which his daughter Alice was riding, and a truck driven by defendant Gordon J. Keebler, in which his wife Dorothy was riding. The accident occurred at the intersection of South One Hundred Twentieth street and Roseburg avenue south, in King county, Washington.

The cause was tried to the court without a jury. The court entered findings, conclusions and judgment in favor of plaintiff Alice Warner against defendants, and denied plaintiff E. C. Warner, individually, any recovery. The court also denied defendants recovery on their cross-complaint for personal injuries received and damage to their truck.

Motions for judgment notwithstanding the oral decision of the court, or in the alternative for new trial, were timely made by defendants and by plaintiff E. C. Warner, individually, and denied.

Defendants have appealed from the judgment entered, and plaintiff E. C. Warner, individually, has appealed from that part of the judgment denying him relief.

Roseburg avenue south and South One Hundred Twentieth street are gravel surfaced public highways in King county, Washington, neither street being an arterial highway. Roseburg avenue runs in a general northerly and southerly direction, and One Hundred Twentieth street runs in an easterly and westerly direction.

Just prior to the accident, as appears by the testimony of appellant Gordon Keebler, he was proceeding north on Roseburg avenue at about eighteen miles per hour in his Ford truck. For about one hundred feet south of the intersection, the road was rough, and he slowed down to about fifteen miles per hour. At all times he was driving on his right hand side of the road. He did not look to the right for approaching traffic on One Hundred Twentieth street, and did not see the Warner car until just as he came into the intersection, at which time he thought the Warner car was about one hundred feet east of the intersection. Appellant testified that he could not tell the speed of respondent's car, and, to use his own words, 'I was giving the man the benefit of the doubt of a prudent speed.' He further testified that he did not stop, although he could have stopped in ten or twelve feet, but kept right on into the intersection, thinking, as he said, that it was more or less safe to drive across the intersection. He was almost through the intersection when his truck was struck just back of the cab by the Warner car, and was carried across the intersection to the north and west, and turned partly around.

On direct examination, Dorothy Keebler was asked the question: 'Will you just explain in your own words how the accident happened?' to which she replied: 'There isn't really much we can explain, except that we were approaching the intersection and we saw the lights of this car approaching, and the next thing the accident was over with. That is about the only way I can describe it. We were approaching the intersection and saw the lights and were halfway across the street when the accident was over with.'

This witness further testified that she thought the Warner car was seventy-five to one hundred feet away when they first saw it.

Respondent E. C. Warner testified that just prior to the collision he was proceeding west on One Hundred Twentieth street at about thirty to thirty-five miles per hour; that his daughter Alice, a minor of thirteen years, was riding with him; that he first saw appellants' truck when he was about sixty-five feet east of the intersection; that when he saw appellants' truck, he slowed down, and that the Keebler truck slowed down, or, as it looked to him, had come to a stop; that by this time he had reached the intersection, and thinking appellant's truck had slowed down or stopped to let him pass, he then turned his attention to the front, stepped on the gas, released his brakes, and all of a sudden appellants' truck was Before him and it was too late to avoid the collision.

The traveled portion of One Hundred Twentieth street was about twenty-one feet wide where it entered the intersection, and about twenty-four feet wide including the part outside the traveled portion. Appellant Gordon Keebler further testified that at the time he was struck, there was about ten or twelve feet back of his truck which was available for Warner to use, but that Warner did not vary his course but came straight on until he struck appellants' truck.

The trial court found that by reason of the combined and concurring negligence of respondent E. C. Warner and appellants, and as a proximate result thereof, the automobile of respondent E. C. Warner and the truck of appellants came into collision within the intersection, and by reason thereof, the injuries and damages to the various parties were incurred.

The trial court further found that the negligence of Gordon Keebler consisted of the following: Failing to keep a proper lookout for the approach of the Warner automobile, and failing to yield to the Warner automobile the right of way in and through the intersection, when the latter was on the right of appellants' truck and simultaneously approaching a given point within the intersection.

Appellants' assignments of error will be hereinafter referred to as they are discussed.

This case having been tried to the court, we are bound to accept the findings as verties, unless from the record it appears that they are contrary to the clear preponderance of the evidence. Petro Paint Mfg. Co. v. Taylor, 147 Wash. 158, 265 P. 155.

Appellants contend the court erred in denying them recovery against respondent E. C. Warner, and in holding that appellant Gordon Keebler was negligent, and that such negligence was one of the proximate causes of the accident. It is apparent from the fact that the cars collided in the intersection and the further fact that it does not appear that respondent's car was being so wrongfully and unlawfully operated as to deceive appellants, that the cars were simultaneously approaching a given point in the intersection. Martin v. Hadenfeldt, 157 Wash. 563, 289 P. 533. This being true, it follows that appellant Gordon Keebler was the disfavored driver. Rem.Rev.Stat. § 6360-88 provides: 'It shall be the duty of every operator of any vehicle on approaching public highway intersections to look out for and give right of way to vehicles on their right, simultaneously approaching a given point within the intersection, and whether such vehicle first enter and reach the intersection or not: Provided, This section shall not apply to operators on arterial public highways.'

While all rights of way are relative, the primary duty of avoiding accidents rests upon the driver on the left, which duty he must perform with reasonable regard to the maintenance of a fair margin of safety at all times. Martin v. Hadenfeldt, supra.

In Roed v. Washington Laundry Co., 160 Wash. 166, 294 P. 1023, the plaintiff was driving his car north on Roed road, and on approaching the intersection with the Sunnydale road, he looked and saw the laundry truck approaching at a distance of about one hundred seventy-five feet. Plaintiff was driving at about sixteen miles per hour. He speeded up his car a little, but was struck by the laundry truck at a point a few feet north of the center of the intersection. Plaintiff was the driver on the left, and we held that he was guilty of such negligence as to preclude a recovery, and that the case fell within the second paragraph of the principles announced in the Hadenfeldt case, and without the fourth.

In Strouse v. Smith, 166 Wash. 643, 8 P.2d 411, 412 the driver of the car on the left testified that he did not look to the right for approaching cars until the front end of his car came into the intersection. In commenting on the testimony in the cited case, we stated: 'Respondent's testimony conclusively establishes the fact that, except for his contributory negligence in failing to comply with the statute above referred to, the injury would not have occurred. He did not, when approaching the public highway intersection, look out for and give right of way to the vehicle on his...