Weaver v. McClintock-Trunkey Co.

• Decision Date: 27 March 1941
• Docket Number: 28117.
• Citation: 111 P.2d 570,8 Wn.2d 154
• Parties: WEAVER et ux. v. McCLINTOCK-TRUNKEY CO.
• Court: Washington Supreme Court

111 P.2d 570

8 Wn.2d 154

WEAVER et ux. v. McCLINTOCK-TRUNKEY CO.

No. 28117.

Supreme Court of Washington, En Banc.

March 27, 1941

Action by Melvin Weaver and wife, a marital community, against the McClintock-Trunkey Company for personal injuries alleged to have been sustained by plaintiff wife in consequence of emergency stop of automobile in which she was riding to avoid collision with defendant's truck. From a judgment for plaintiffs, the defendant appeals.

Affirmed.

ROBINSON C.J., and SIMPSON, STEINERT, and BLAKE, JJ., dissenting.

Appeal from Superior Court, Spokane County; Chas W. Greenough, judge.

E. A Cornelius, of Spokane, for appellant.

H. E. T. Herman and Richard S. Munter, both of Spokane, for respondents.

MILLARD Justice.

Plaintiffs, a marital community, brought this action to recover against defendant corporation for personal injuries alleged to have been sustained by plaintiff wife in consequence of emergency stop of automobile, in which she was riding, to avoid collision with negligently operated truck of the defendant. The cause was tried to the court which found that because of the negligence of the operator of defendant's truck the operator of an automobile in which plaintiff wife was a passenger was compelled to apply the brakes of his automobile in such an abrupt manner as to suddenly stop the automobile, which sudden half hurled plaintiff wife from her seat in the automobile with resultant injuries which entitled her to recovery in the amount of $1500. From judgment entered in consonance with those findings, the defendant appealed.

Counsel for respondents contend that the proximate cause of injuries to respondent wife was appellant's negligence in emerging from the alley and crossing the sidewalk without bringing its truck to a full stop and yielding the right of way to all vehicles upon Adams street as required by Spokane city ordinance No. C6072 and the statute (Rem.Rev.Stat. § 6360-92), reading, respectively, as follows: 'Section 65. * * * It shall be unlawful for the operator of a vehicle to emerge from any alley, driveway, building exit, private way or private property or from off the roadway of any public highway, onto the roadway of any public highway or across a sidewalk or into the sidewalk area extending across any such alley, driveway, building exit, private way or private property without bringing such vehicle to a full stop and yielding the right of way to all pedestrians upon such sidewalk and all vehicles upon such public highway.'

'It shall be unlawful for the operator of a vehicle to emerge from any alley, driveway, building exit, private way or private property or from off the roadway of any public highway, onto the roadway of any public highway or across a sidewalk or into the sidewalk area extending across any such alley, driveway, building exit, private way or private property without bringing such vehicle to a full stop and yielding the right of way to all pedestrians upon such sidewalk and all vehicles upon such public highway.'

That is, argue counsel for respondents, appellant's negligence, which was the proximate cause of the emergency stop of the automobile with resultant injuries to respondent wife, consisted of appellant's violation in two respects of both the city ordinance and statute quoted above: (1) Failure to bring the truck to a complete stop, Before proceeding across the sidewalk on to Adams street, at a point where the operator of the truck could see the automobile going north on Adams street; and (2) failure to yield the right of way to the automobile on Adams street.

Counsel for appellant insists that as the truck stopped at the building line Before proceeding across the sidewalk appellant was not guilty of negligence. It is contended that respondent wife, who was an occupant of an automobile whose operator brought that vehicle to an abrupt stop under the mistaken belief that an emergency had been created by another motor vehicle, cannot recover against the owner of the second vehicle 'which was being driven without negligence.'

Whether appellant was negligent and whether as a result of that negligence respondent wife was injured, are questions of fact which were determined adversely to appellant by the court, which was the trier of the facts. If there is evidence to support the trial court's findings, the findings will not be disturbed on appeal. Meacham v. Dioguardi, 166 Wash. 684, 8 P.2d 293; Hilliard v. United Pacific Casualty Insurance Company, 195 Wash. 478, 81 P.2d 513, and Sears, Roebuck & Co. v. Nilsen, 175 Wash. 237, 27 P.2d 128.

The facts are summarized as follows: July 26, 1939, respondent wife was riding as a guest in the rear seat of an automobile operated by Roy Smith in the city of Spokane. Smith's wife was in the front seat to the right of her husband. The automobile was traveling at the rate of 20 to 25 miles an hour in a northerly direction 6 feet west of the east curb on Adams street, which street is 51 feet wide from curb to curb. The center 47 feet of that street is paved with concrete. Between the concrete surface and the curbs are two brick gutters each 2 feet wide and a part of the street. On the east side of Adams street is a sidewalk extending east from the curb a distance of 12 feet, 1 inch. In the center of Adams street, north of the north line of an alley projected, which alley parallels First avenue to the north and Second avenue to the south and intersects Adams street, is a concrete pillar which supports the Northern Pacific Railway Company's viaduct. The alley, or private driveway, which is 16 feet wide and immediately south of the viaduct, extends from Adams street east to Jefferson street, and is not paved. Immediately east of the sidewalk, described above, an approach of concrete 2 feet wide extends easterly into the alley. Adjoining the north side of the alley and extending to the east property line of Adams street is a high concrete retaining wall which supports the fill on which are laid the railway tracks passing over the Adams street viaduct. Adjoining this...