Winston v. Bacon

• Decision Date: 03 April 1941
• Docket Number: 28217.
• Citation: 111 P.2d 764,8 Wn.2d 216
• Court: Washington Supreme Court
• Parties: WINSTON et al. v. BACON.

111 P.2d 764

8 Wn.2d 216

WINSTON et al. v. BACON.

No. 28217.

Supreme Court of Washington, En Banc.

April 3, 1941

Action for personal injuries by Louise Winston and another against Raymond Bacon. From a judgment for defendant, plaintiffs appeal.

Affirmed.

BLAKE MAIN, and MILLARD, JJ., dissenting.

Appeal from Superior Court, King County; James T. Lawler, judge.

George F. Hannan and Charles H. Heighton, both of Seattle, for appellants.

Ballinger Hutson & Boldt, of Seattle, for respondent.

STEINERT Justice.

This action was instituted by plaintiff Louise Winston to recover damages for personal injuries sustained by her as the result of a collision between an automobile owned and operated by defendant and an automobile in which plaintiff was riding as a guest of the driver. Mattie Norman, another guest in the car in which plaintiff Winston was riding, was subsequently made a co-plaintiff seeking damages for similar injuries sustained in the same collision. Tried to the court, sitting without a jury, the action resulted in findings of fact and conclusions of law in defendant's favor. Motions for judgment notwithstanding the decision of the court, for a new trial, and for reopening of the case were denied. Judgment was entered on the findings, and plaintiffs appealed.

The collision occurred in the intersection of Fourteenth avenue and Alder street in the city of Seattle, at approximately 11:15 P. M. on July 22, 1939. Fourteenthavenue, in that vicinity, is thirty feet wide from curb to curb, and runs in a northerly and southerly direction; Alder street is approximately twenty-five feet wide from curb to curb, and runs in an easterly and westerly direction. The two streets neither of which is an arterial, intersect at right angles. Fourteenth avenue approaches the intersection from the south on an upgrade of 7.8%. Alder street approaches the intersection from the west on an upgrade of 1.6%, and after crossing the intersection proceeds eastwardly on an upgrade of 8.4%. The intersection itself is practically level, but is obstructed on all four corners. At the southeast corner, there is a vacant lot which is covered with a luxuriant growth of berry bushes seven feet high and extending partly onto the sidewalk. As a driver approaches the intersection from the south, his view of Alder street to the right is thus obstructed until he arrives approximately at the south margin of the intersection. On the south-west corner of the intersection, a house sits back ten or fifteen feet from the sidewalk. In addition, a three-foot hedge borders the property, at the sidewalk line, and a row of laurel bushes three or four feet high grows in the parking strip, along both Alder street and Fourteenth avenue. As a driver approaches the intersection from either the west or the south, his view to the south or to the west, alternately, is thus obstructed until he arrives at or near the west or south margin, respectively, of the intersection. Upon all four approaches to the intersection, at a distance of about one hundred feet from the corner, the city has posted reflector signs reading: 'Cross Traffic. Safe Speed 15 Miles.' The maximum speed allowed, by statute, in traversing any intersection of public highways within incorporated cities and towns where the operator's view is obstructed, however, is twenty miles per hour, Rem.Rev.Stat. § 6360-64, and it is not contended herein that the statutory speed limit was affected by the posting of the signs. On the night of the collision, the weather was warm, and the streets were dry.

Respondent was driving north on Fourteenth avenue in a 1933 Dodge coupe, and was accompanied by a friend, a fellow-employee. At the same time, one Charles E. Johnson was driving est on Alder street in a 1928 Whippet coupe which he had purchased from a used-car dealer about a week Before . Accompanying Johnson, and sitting to his right in the coupe, were the two appellants herein. Respondent, being the driver on the right, was, under our statute, the favored driver. Rem.Rev.Stat. § 6360-88.

The Whippet coupe, driven by Johnson, entered the intersection, and proceeded to cross. After it had reached a point near the southeast corner of the intersection, it was struck on the right rear wheel and fender, and, as a result of the impact, was whirled around and forced over to the north side of Alder street, coming to rest facing west, with its front end at about the inner line of the east sidewalk running north on Fourteenth avenue. Johnson escaped unhurt, but appellants received the injuries for which they seek to recover in this action.

The only eyewitnesses to the collision and the preceding events were the occupants of the two cars, and their testimony was in sharp conflict.

Respondent testified that, prior to the time of the collision, he had been driving at a speed of from twenty to twenty-five miles per hour, slowing down at the intersections; that in the block south of Alder street he was driving at a speed of about twenty-three miles per hour; that he kept a lookout as he drove along; that Before he reached the intersection he glanced to his left but saw no lights or reflection of lighs; that as he entered the intersection he slowed down to about twenty miles per hour, and, on account of the obstructed view at the southeast corner, was giving his attention primarily to the right in order to determine whether any traffic was approaching from that direction; that when he arrived approximately at the south curb line, and after completing the necessary observation of conditions on his right, he looked to the left, and then for the first time saw the other car, which at that time was just entering the intersection and was about ten or fifteen feet distant from him; that he immediately applied his brakes with full force and swerved to the right in an effort to avoid a collision, but without avail; that he collided with the rear right side of the other car as it crossed his path along Fourteenth avenue, just north of the center line of Alder street; and that his car stopped about a foot or a foot and a half from the point of impact. He further testified that the other car, when he first observed it, was proceeding along the center line of Alder street at a speed which he estimated at thirty miles per hour; that only one of its headlights was burning, and that the one light that was burning threw practically no beam; and that the other car, from the time that he first saw it until the moment of the impact, did not alter its course or slow down. Respondent's testimony was corroborated by that of his companion, except that the latter was under the impression that respondent had swerved to his left, rather than to his right, to avoid the collision, and that the two cars came together at about the center, or slightly west of the center, of the intersection.

On the other hand, Johnson, driver of the car in which appellants were riding, testified as follows: Just prior to the time of the collision, he was traveling east along Alder street at a speed of twenty-five miles per hour, which was about the maximum speed of which his car was capable. As he reached Fourteenth avenue, he slowed down, coming almost to a stop, and shifted into second gear. He looked to his right at the time that he first entered the intersection, but saw no car approaching. When he was about ten feet within the intersection, he again looked to his right, and then for the first time saw the lights of an approaching car about one hundred and fifty feet south of the intersection. He was at that time traveling at a speed of ten or twelve miles per hour, and concluded that he had plenty of time to cross. He continued forward beyond the center line of Fourteenth avenue, and had gotten partly out of the intersection, near the southeast corner thereof, with the front end of his car almost to the east sidewalk, when the Dodge coupe coming from his right struck the rear right side of his car with such violence as to whirl it around twice and force it over to the north side of Alder street, where it came to a stop facing in a westerly direction. Johnson also testified positively that, prior to the collision, his lights were in good condition, and that both were burning. Upon cross-examination, he admitted that his car was dark, and mud-spattered from use, and that only one light was burning after the collision. The testimony given by appellants themselves was in accord with that given by Johnson.

A disinterested witness, who appeared upon the scene shortly after the accident, testified that skid-marks, eleven or twelve feet long, were left upon Fourteenth avenue by respondent's car. During the course of the trial, the court visited the scene of the accident, and observed the surrounding conditions.

At the conclusion of the evidence, the cause was taken under advisement, and the court subsequently filed a lengthy memorandum decision in which the testimony in the case and the authorities upon the subject were analyzed, and in which the conclusion was reached that a judgment of dismissal of appellants' case should be entered. Thereafter appellants interposed the motions above referred to, and, after argument thereon, the court filed a memorandum opinion indicating that the motions should each be denied. Formal findings of fact were then made in which the court found that the accident occurred within the intersection, near the southeast corner thereof; that, at the time of the occurrence, respondent was driving his automobile in a careful and prudent manner, and at a lawful and proper rate of speed; that the collision and the resulting injuries to appellants were caused solely, proximately, and directly by the negligence of Johnson in his operation of the car...