Wilson v. Wright
| Decision Date | 28 August 1958 |
| Docket Number | No. 34625,34625 |
| Citation | 329 P.2d 461,52 Wn.2d 805 |
| Parties | Forrest L. WILSON and Mary Wilson, his wife; Mary Freeman, a widow, and Ira Freeman, Appellants, v. Ems W. WRIGHT and LeVeta Wright, his wife; Young's Lumber Co., a corporation; and J. D. Shotwell Co., a corporation, Respondents. |
| Court | Washington Supreme Court |
Cheney & Hutcheson, Harry Hazel, Beaulaurier & Hanson, Malcolm A. McDonald, Yakima, for appellants.
Minnick & Hahner, James B. Mitchell, Walla Walla, Milton Warner, Seattle, for respondents.
This action arises out of a nearly head-on automobile-truck collision which occurred about 5:30 p.m. May 25, 1954, on state primary highway No. 5 (the White Pass highway) at a point approximately 20 miles west of Naches, Washington.
Appellant Forrest Wilson was friving eastward in his Nash automobile, accompanied by his young daughter and coappellants herein. Respondent Ems Wright, engaged in making a delivery of lumber for his employer, respondent Young's Lumber Company, was operating the latter's 1951 Chevrolet flatbed lumber truck in the opposite direction.
Respondent Shotwell Company was engaged by the state highway department to resurface several miles of the highway at, and in either direction from, the collision scene.
Within the construction area, the posted speed limit was 35 miles per hour. The old pavement was pitted with innumerable depressions, or chuckholes, varying in size and shape, but the highway department permitted the road to be used for the movement of traffic in both directions.
At and near the collision site, a continuous pile of gravel ballast, ranging from about 18 to 24 inches in height, lined each side of the pavement. Although the paved portion of the highway was otherwise unobstructed, traffic was confined within its width of approximately 18 1/2 feet. The highway was dry and fairly straight, its center stripe faded, but visible.
Each driver saw the other vehicle approaching, and each was driving to his right of the center stripe. As the vehicles approached each other, the truck, driven by respondent Wright, passed over a series of chuckholes. The last one encountered prior to the impact was approximately 28 inches long, 23 inches wide, and from 2 to 2 1/4 inches deep, extending on both sides of the center line.
Upon passing over this chuckhole, the truck made an abrupt turn to the left, entering the lane of travel in which appellants were approaching. Immediately, the vehicles collided in the eastbound lane, the left front portion of the truck striking the same part of the Wilson car.
Appellants sustained various types of personal injuries, and commenced this action to recover damages therefor. In addition, appellants Wilson sought damages for the loss of their car.
For convenience, we shall hereinafter refer to appellants collectively as though they were one individual, and to respondent Shotwell Company as Shotwell. Since the liability of respondent Young's Lumber Company is predicated solely upon the alleged negligence of its employee Wright (under the doctrine of respondent superior), they shall be referred to as respondent.
In the complaint, appellant alleged that responsent and Shotwell were each negligent in three respects (which will be hereinafter discussed).
Respondent answered, generally denying appellant's averments of negligence, and specifically alleging that the
'collision occurred wholly without fault on * * * [his] part and by reason of the truck * * * striking one of a number of holes * * * breaking the front left spring shackles and disrupting the operating and steering mechanism of said truck, all of which could not have been anticipated or avoided * * * in the exercise of due care.'
Shotwell answered separately, generally denying negligence, and alleging that the collision occurred without fault and as a result of an accident which, in the exercise of due care, could not have been avoided.
Appellant replied to each answer, denying the affirmative matters therein contained.
The case was tried to the court, sitting without a jury. At the conclusion of appellant's case in chief, the trial court sustained Shotwell's challenge to the sufficiency of the evidence, and ordered appellant's action against it dismissed. The trial then proceeded for the reception of respondent's evidence. After the close of all evidence, the trial court rendered a memorandum opinion in which he found in favor of respondent on the issue of negligence. Findings of fact, conclusions of law, and judgment dismissing the action against respondent were entered accordingly.
Appellant first assigns error to the trial court's order granting Shotwell's pretrial motion to strike paragraph seven of the complaint on the ground that the matter contained therein was irrelevant and redundant. In that paragraph of the complaint, appellant sought to incorporate, by reference, the written contract (together with its specifications) between the state highway department and Shotwell under which the latter undertook to resurface the part of the highway involved in this case. Since that contract is not a part of the record before us, we cannot determine whether such error, if any, was prejudicial. It is, therefore, impossible for us to pass upon the propriety of the trial court's action in this regard.
Error is next assigned to the granting of Shotwell's motion for involuntary nonsuit at the close of appellant's evidence. The correctness of this ruling necessarily depends upon whether appellant presented sufficient evidence to establish a prima facie case of negligence on the part of Shotwell in any one of the three respects alleged, and whether such negligence, if any, was a proximate cause of appellant's damage.
Appellant first alleged that Shotwell was negligent:
'In failing and neglecting to keep the existing traveled roadway at the point of said collision, and for a considerable distance westerly thereof, in a good condition for traffic * * * that * * * [Shotwell] permitted traffic, travel and transportation over said portion of said highway when the same had in it a number of dangerous chuck-holes, one of which just east of the point of collision, was 23 inches wide, 28 inches long and 2 to 2 1/4 inches deep, into which * * * Ems W. Wright drove said lumber truck just prior to said collision, losing control over the said vehicle.'
In paragraph five of the complaint, appellant alleged that, on the day of the collision, Shotwell was engaged in repairing the highway under a written contract with the state department of highways, which was approved by the director of highways on June 24, 1953. It is further alleged in paragraph six of the complaint:
Shotwell admitted these allegations in its answer.
The only evidence offered by appellant was that the highway contained a multitude of chuckholes in the vicinity of the collision. From Shotwell's admission that the allegations contained in paragraphs five and six of the complaint were true, and the undisputed presence of numerous chuckholes, appellant argues in his brief that:
'It is also undisputed that although approximately one year had elapsed since Shotwell had commenced this highway improvement project, it had made no attempt whatever to fill or repair any of these chuck-holes in the highway in this area, although, of course, this could readily have been done.'
But this conclusion is neither supported by the admissions made by Shotwell nor by appellant's proof. Shotwell merely admitted:
'That on May 25th, 1954 * * * [Shotwell] was engaged in repairing a portion of Primary State Highway No. 5 * * * under a written contract with the Department of Highways * * * approved by the Director of Highways on June 24th, 1953.'
There is no evidence whatever concerning the time within which the contract was to be performed or the date when Shotwell was required to, or actually did, commence performance nor is there evidence that Shotwell was engaged in resurfacing the road at any time prior to May 25, 1954. Hence, even if we assume arguendo that it was Shotwell's duty to fill the numerous chuckholes in order to keep the highway 'in good condition' for traffic within the contemplation of the above quoted specification 7.07, still Shotwell would be allowed a reasonable time in which to do so. But, under that assumption, the burden of proof would be upon appellant to prove that Shotwell had not performed this duty within a reasonable time. Appellant failed to present any evidence whatever tending to establish such fact.
Appellant's second and third averments of Shotwell's negligence are, respectively:
'In failing to warn the users of said highway, particularly these plaintiffs, of the dangerous condition thereof; and
'In failing to erect a barricade or other suitable structure around said chuck-hole to prevent vehicular traffic from encountering the same.'
These allegations are not only without evidentiary support, but are practically controverted by the testimony of appellant Forrest...
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