White v. Fenner

• Decision Date: 14 January 1943
• Docket Number: 28847.
• Citation: 133 P.2d 270,16 Wn.2d 226
• Parties: WHITE v. FENNER et ux.
• Court: Washington Supreme Court

133 P.2d 270

16 Wn.2d 226

WHITE v. FENNER et ux.

No. 28847.

Supreme Court of Washington

January 14, 1943

Department 1.

Action by George C. White against G. A. Fenner and wife for personal injuries and property damage resulting from collision between plaintiff's automobile and defendants' truck while the truck was allegedly making a left turn upon an arterial highway in the face of on-coming traffic, wherein defendants filed a cross-complaint. Verdict and judgment for plaintiff and defendants appeal.

Judgment affirmed.

Appeal from Superior Court, King County; Calvin S Hall, judge.

Eggerman Rosling & Williams, of Seattle, for appellants.

Henry I. Kyle, of Enumclaw, and George F. Hannan, of Seattle, for respondent.

STEINERT Justice.

Plaintiff brought suit to recover for personal injuries and property damage resulting from a collision between an automobile which he was driving and a truck owned by the defendants, husband and wife, and operated at the time by the husband. The complaint charged the truck driver with negligently and unlawfully making a left turn upon an arterial highway, in the face of on-coming traffic, causing the truck to collide with plaintiff's automobile. Defendants answered, denying generally the material allegations of the complaint, pleading affirmatively contributory negligence on the part of the plaintiff, and cross-complaining for damages alleged to have been caused to the truck through the negligence of the plaintiff. The affirmative allegations of defendants' answer and cross-complaint were denied in plaintiff's reply.

The action was tried to a jury. At the close of plaintiff's case, defendants moved for a nonsuit. The motion was denied. At the conclusion of all the evidence, defendants moved for a directed verdict in their favor. That motion was likewise denied. The case was then submitted to the jury and a verdict in favor of the plaintiff was returned. Defendants later moved for judgment notwithstanding the verdict and also for a new trial. Both motions were denied, and judgment was thereupon entered on the verdict. Defendants appealed. Plaintiff will hereinafter be designated as respondent, and defendant G. A. Fenner will be referred to as though he were the sole appellant.

The fourteen assignments of alleged error may be grouped under two heads: (1) error in denying appellant's successive motions challenging the sufficiency of the evidence to sustain a verdict for respondent and requesting a directed verdict and judgment for appellant, and (2) error in denying the motion for new trial, under which assignment appellant calls in question (a) certain instructions given by the court, (b) the refusal of the court to give other instructions requested by appellant, and (c) the admission of certain evidence over appellant's objections. We shall consider these assignments in the order stated.

A motion for nonsuit, for a directed verdict, or for judgment notwithstanding the verdict admits the truth of the plaintiff's evidence and all inferences that reasonably can be drawn therefrom, and requires that the evidence be interpreted most strongly against the defendant and in the light most favorable to the plaintiff. Billingsley v. Rovig-Temple Co., Wash., 133 P.2d 265, and cases therein cited. Stated according to the requirements of this rule, the evidence upon which the jury was entitled to base its verdict may be related as follows:

The accident out of which this litigation arose befell on a day in late August at about seven o'clock p.m., on a public highway known as State Highway No. 5, at a point approximately twenty feet north of the intersection of that highway with the Kent-Kangley road. State Highway No. 5 is an arterial highway extending in a northerly and southerly direction. It is built of concrete pavement twenty feet wide, with a yellow marker line along the center, and on each side of the pavement is an eight-foot shoulder consisting of gravel and dirt. South of the intersection and beyond the east shoulder is a deep ravine.

Intersecting State Highway No. 5 at approximately right angles is the Kent-Kangley road which extends in an easterly and westerly direction. That road, which is a nonarterial thoroughfare, is about twenty-five feet in width and is paved with 'black-top.' Immediately north of the intersection and east of State Highway No. 5 is another nonarterial road, called the Eatonville road, which extends in a northeasterly and southwesterly direction and has its western terminus at the state highway. The Eatonville road is approximately fifteen feet wide and at the time here involved had recently been improved with heavy gravel and crushed rock, but had not been oiled. At its terminus the Eatonville road flares out somewhat to the margin of both the state highway and the Kent-Kangley road, and in that area is covered with rough black-top.

The course of State Highway No. 5 south of the intersection is straight but has an ascending grade of one per cent for a distance of about six hundred feet and then flattens out. At the time of the accident the weather was clear and the pavement was dry. The maximum speed limit upon the state highway was at that time fifty miles an hour.

Respondent was driving his Dodge coupe north along State Highway No. 5 toward the intersection at approximately the maximum speed just mentioned. At the same time, appellant was proceeding south in his loaded two-ton truck toward the intersection at a speed of twenty or twenty-five miles an hour. For some distance back of the intersection appellant had pursued an erratic course along the highway, 'weaving' back and forth across the yellow line from one side of the road to the other. An automobilist who had been following him endeavored several times to pass him but was unable to do so because of appellant's confusing actions. As appellant approached the intersection he first veered to the right, seemingly intending to turn west on the Kent-Kangley road; then, without giving any signal, he suddenly veered to the left in a southeasterly direction.

As respondent approached the intersection from the south, driving at a speed of about fifty miles an hour, he first observed appellant's truck when the two vehicles were about seven hundred feet apart. Respondent at that time was about five hundred feet south of the intersection and appellant was about two hundred feet north of it, travelling at an estimated speed of twenty or twenty-five miles an hour. Appellant was then well over on the west side of the road and gave respondent the impression that he intended to turn to his right at the intersection.

Apprehending no difficulty, respondent proceeded forward, at the same time reducing his speed to about forty-five miles an hour. When approximately two hundred seventy-five feet distant from the truck, respondent saw it suddenly swerve to its left toward the east lane of the highway along which respondent was travelling. Appellant gave no signal of his intention to make a left turn. The truck crossed the yellow line at a point approximately opposite the north line of the Eatonville road and about twenty or twenty-five feet north of the intersection. Respondent applied his brakes, thereby further reducing his speed to about twenty-five miles an hour. Appellant in the meantime had decreased his speed to about eight miles an hour but was still moving forward.

At a distance of one hundred fifty feet from the appellant, respondent applied his brakes firmly, leaving a skid mark one hundred thirty-nine feet along the pavement. Realizing his dilemma, created by the continued forward movement of the truck, respondent then endeavored to avoid the latter vehicle by steering his car to the right, toward the east shoulder of the highway. The truck continued on at its reduced speed, beyond the yellow line, in a southeasterly course, and projected its left front end over onto the easterly half of the highway a distance of six feet.

The front portion of respondent's car, then travelling with its two right wheels on the gravel shoulder, had completely passed beyond the front end of the truck, when the rear left side of the car was struck by the left front bumper and fender of the moving truck, causing the Dodge car to swing around and crash into a telephone pole located twenty-seven feet ahead, just off the east side of the highway. Respondent was thrown from his car, landing on his back near the edge of the highway, and sustained severe injuries. His car was practically demolished. The automobilist who previously had been following the appellant, and a state patrol officer who appeared on the scene shortly after the accident, both testified that they talked to the appellant at the scene and that they detected a distinct odor of intoxicating liquor on his breath.

It is but proper to say that appellant's evidence was to the effect that respondent was travelling at an excessive rate of speed as the latter approached the intersection; that owing to the ascending grade and the flattening of the road beyond the crest, appellant did not appreciate respondent's excessive speed until the latter had reached a point about five hundred feet distant from appellant; that at that time appellant had begun his turn to the left, within the intersection, after giving a signal by opening the left door of his truck; that realizing he could not complete the turn ahead of the respondent, appellant then brought his truck to a stop within two feet, at a point where the left front fender was east of the yellow line a distance of three to five feet. Appellant concedes in his brief, however, that the jury decided the issue of respondent's speed in the latter's favor. Although appellant denied that he had been drinking on the day of...