Young v. City of Seattle

• Citation: 172 P.2d 222,25 Wn.2d 888
• Decision Date: 30 August 1946
• Docket Number: 29780.
• Parties: YOUNG v. CITY OF SEATTLE.
• Court: United States State Supreme Court of Washington

172 P.2d 222

25 Wn.2d 888

YOUNG v. CITY OF SEATTLE.

No. 29780.

Supreme Court of Washington

August 30, 1946

Department 2

Action by Richard Lee Young against the City of Seattle to recover damages sustained in a collision between plaintiff's automobile and defendant's bus. From a judgment for defendant, plaintiff appeals.

Affirmed.

Appeal from Superior Court, King County; J. T Ronald, Judge.

Leon L Wolfstone and George N. Lusch, both of Seattle, for appellant.

A. C Van Soelen, Corp. Counsel, John A. Homer, and E. A. Swift Jr., all of Seattle, for respondent.

ROBINSON Justice.

This action arose out of a collision between a passenger automobile driven by the plaintiff, Richard Lee Young, and a bus operated by the city of Seattle as a unit of its municipal transit system. The collision occurred at the intersection of Broad street and First avenue at about one-thirty a. m. of a clear July night. The plaintiff was traveling in a westerly direction on Broad street, an arterial fifty-four feet in width. The bus was traveling in a northerly direction on First avenue, which is not an arterial. It has a width of fifty-two feet. There was no obstruction on the southwesterly corner of the intersection which would prevent either driver from observing the approach of the other.

The case was tried by the court without a jury. The drivers of the respective vehicles were the only witnesses who gave any substantial testimony as to the collision itself, and their accounts are in sharp conflict. The woman driver of the bus testified that she came to a full stop Before entering the arterial, and her testimony in this respect was corroborated by another bus driver whose vehicle was closely following hers. There is the usual mass of testimony concerning distances, skid marks, and how long it takes to stop a car while going at different rates of speed, and so forth. To set this out in an opinion would be of no profit to anyone.

At the close of all the evidence, the trial judge said:

'Well, gentlemen, I have had a great many of these automobile accidents to solve, and I have had large experience in driving automobiles, and I think I am prepared to decide this case now.

'Suppose that I don't give this woman driver's testimony any credit at all; and for the purpose of this decision I won't give it any credit, not that I can say I don't believe it; but I will not base my decision on her testimony at all, except insofar as it is proven.'

He then proceeded to carefully and thoroughly analyze all of the evidence as to time, distance, and of every other circumstance surrounding the collision, and concluded that, although the woman driver of the bus may not have been altogether free from fault, the plaintiff was justly chargeable with contributory negligence.

'So, charge her with all the negligence you want,--and I consider her testimony was not perfectly satisfactory,--you can't escape the absolute conclusion that he was guilty of contributory negligence, and if he was going over that same ground a thousand times, that same country, he would never do again just what he did this time. He was guilty of contributory negligence because he didn't see what was perfectly obvious to him, and what he should have seen.'

Plaintiff promptly filed a motion for judgment notwithstanding the oral opinion pronounced at the close of the trial, and, in the alternative, for a new trial. These motions were argued, and denied. In due course, the trial court made findings of fact, of which Finding No. III is the most material:

'That on said date at approximately the hour of 1:30 A. M., the plaintiff was operating his car in a westerly direction on Second Avenue toward First Avenue on said arterial highway and had a collision, striking one of the trolley coaches of the defendant at a point of collision approximately 13 feet south of the north line of Broad Street; that it was found that the trolley being operated by the defendant had made the stop on arriving at Broad Street and from the point of the stop to the point at which the said trolley was struck, was a distance of 92 feet; that the automobile which was owned and operated by the plaintiff, Richard Lee Young, went a distance of 120 feet from the point at which the defendant stopped, did see the defendant approaching said stop and while traveling at the rate of speed of 20 to 25 miles per hour, traveled 125 feet to the point of collision.

'The evidence shows that the defendant trolley coach operator failed to stop and failed to avoid the collision. It further shows that the plaintiff traveling at a speed which is shown would have passed the point of collision by the time the defendant operator had made the stop and traveled 92 feet to the point of collision and was, therefore, guilty of primary negligence.

'The evidence shows that the plaintiff was going a great deal faster than he claimed he was and that he was farther up the street than the 120 feet he claimed he was.'

When the findings are studied in connection with the oral opinion delivered by the trial judge at the close of all the evidence, it clearly appears that he came to the conclusion that the bus driver did not fail to stop Before entering the intersection, as charged by the plaintiff, and, while she was, perhaps, at fault in not stopping and yielding the right of way after she entered the intersection, that the real and primary cause of the accident was plaintiff's speed, in view of what he saw or should have seen.

On appeal, the following errors were assigned:

'1. The court erred in finding appellant guilty of contributory negligence.

'2. The court erred in filing findings of fact and conclusions of law finding appellant guilty of contributory negligence, when there is no evidence to support such findings.

'3. The court erred in failing to find the question of contributory negligence res judicata when certified copy of previous trial was offered in evidence.

'4. The court erred in refusing introduction of certified copy of proceedings and judgment of dismissal in previous trial between same parties, wherein appellant was exonerated of negligence.

'5. The court erred in denying appellant's motion for judgment notwithstanding the memorandum opinion.

'6. The court erred in denying appellant's motion for new trial.'

Of those, 1, 2, and 5 may be answered by inquiring whether the judgment is right or wrong, and it is apparent from the record that the answer to that question depends very largely upon which one of the drivers gave the most truthful account of the collision. Manifestly, the trial judge was in a much better position to determine that than we can possibly be. There is no reasonable standpoint from which we can hold that his decision is not supported by a preponderance of the evidence. These three assignments of error must, therefore, be rejected.

The three remaining assignments may be considered by inquiring whether the court erred in refusing to admit appellant's offered Exhibit No. 5. If it did, a new trial must be ordered. Appellant contends that, if the exhibit had been admitted, the trial court would have been required to hold that the question of his negligence was res judicata. Offered Exhibit No. 5 is certified as a full, true, and correct transcript of all docket entries relating to a certain case tried in the municipal court, entitled: 'City of Seattle, Plaintiff, v. Richard Lee Young, Defendant.' The entries are as follows:

'Complaint filed in writing, July 20, 1944.

'Charge, Sec. 45-1.

'Arresting Officers, O. J. Winsberg.

'Bail, $35.00.

'Continuances, July 20, 1944 to August 3, 1944 to August 17, 1944.

'Defendant Pleads, Not Guilty, August 17, 1945.

'Witnesses, O. J. Winsberg, Rubye Stovick for City. Richard Lee Young, Mrs. Lee Young for Defendant.

'The Court finds defendant, Dismissed.'

The rejected exhibit...