White v. Stanley, 23764.

• Decision Date: 19 August 1932
• Docket Number: 23764.
• Citation: 13 P.2d 457,169 Wash. 342
• Parties: WHITE v. STANLEY.
• Court: Washington Supreme Court

13 P.2d 457

169 Wash. 342

WHITE v. STANLEY.

No. 23764.

Supreme Court of Washington

August 19, 1932

Department 2.

Appeal from Superior Court, Douglas County; C. G. Jeffers, Judge.

Action by Mabel C. White, as administratrix of the estate of Charles C. White, deceased, against Claude J. Stanley. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, with direction.

O. R Hopewell, of Waterville, for appellant.

Hanna &amp Gemmill, of Wenatchee, for respondent.

MAIN J.

This action was brought to recover damages for wrongful death. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiff in the sum of $7,847. The defendant moved for judgment notwithstanding the verdict and, in the alternative, for a new trial, both of which motions were overruled, and judgment was entered upon the verdict, from which he appeals.

The facts essential to be stated are these: The accident, out of which the litigation arose, happened April 5, 1931, at about the hour of 9 o'clock p. m., on the Sunset Highway, approximately seven miles east of the town of Waterville, in Douglas county. Claude J. Stanley and Charles C. White both resided in Waterville, and were friends of many years' standing. Prior to April 5th, which was Sunday, they had discussed the matter of going to Moses Lake on that day on a fishing trip. They met Saturday afternoon, and Stanley, for reasons which are not here material, was not sure that he could go, and White had not been feeling well for a day or two. They met again the following morning. The impediment to Stanley's going no longer existed, and White was feeling able to make the trip. They discussed the matter somewhat, and finally concluded to determine whether they should go by the flipping of a coin. The result was that they concluded to make the trip. Each of them provided some lunch. Stanley took his automobile, a Chevrolet coach, and, Before starting, purchased some gas, for which he paid. They did not take White's automobile because it was an open car, and was not as easy to drive as was the Chevrolet.

About 9 o'clock they left Waterville and proceeded to Moses Lake, arriving there at about 11. It was a cool day, with a strong wind blowing. They fished awhile, with indifferent success, ate their lunch, and later drove to a nearby town for a meal, for which White paid. Later they went to a more secluded part of the lake, where the waters were quieter, and fished until about 6 o'clock in the evening. During this time Stanley had waded into the lake, in water up to his knees, for the purpose of disengaging his line which had become connected with some object. Before starting on the return trip, oil and gas were purchased for the automobile, Stanley paying for the oil and White for the gas. When they started, all the windows in the car were closed. The reason for this was, as Stanley testified: 'Well, I was wet and it was a cold night, and I didn't want to catch cold and we had the car closed.' Stanley drove the car, and White sat in the front seat beside him. They proceeded in the direction of Waterville until the accident happened.

Prior to the accident, for the space of about a half an hour, White had slid down in the seat somewhat, and no conversation had occurred between the two. Stanley testified, in effect, that White appeared to be asleep, though he would not testify positively to that fact. As they were proceeding west on the highway, another car approached, going east, in which were Edgar Mitchell and his family, and Mitchell was driving. The night was clear, the road was straight, and the headlights of both cars were burning. Mitchell testified that he saw the headlights of the Chevrolet as it came over the hill a quarter of a mile away, and there was nothing to prevent Stanley and White from seeing the headlights of Mitchell's car. The road at this place was oiled to a width of about sixteen feet, and on either side was a dirt shoulder of four or five feet.

As the Chevrolet car approached, Mitchell observed that it was on its left-hand side of the road, and he turned the car that he was driving to the right onto the dirt shoulder so that the left wheels were at about the edge of the oiled portion. Mitchell remarked to his wife that he thought the car that was approaching was going to hit them. The Chevrolet car continued to approach from the east on its left-hand side of the road, and the two cars came together head-on, which meant that the Chevrolet car was not only on the left-hand side of the oiled portion of the highway, but was over on the dirt shoulder on that side.

As to the manner of the happening of the accident, Stanley testified: 'This car I ran into, the Mitchell car, apparently came right up out of the earth. I didn't see it until I was right on to it. There was no chance to get away from it.'

He also testified that he must have been dozing or asleep. As a result of the accident, White was killed. His widow, Mabel C. White, was appointed administratrix of his estate, and brought this action.

In submitting the case to the jury, the trial court took from them the question of White's contributory negligence, and decided, as a matter of law, that he was not guilty of such negligence. The court submitted to the jury the question of whether White and Stanley, upon the fishing trip, were engaged in a joint adventure. Speaking generally, there are two questions presented upon this appeal, one that of contributory negligence, and the other joint adventure, and these will be considered in the inverse order from which they are presented in the briefs.

As to the question of joint adventure, the appellant contends (a) that there was no evidence to...