Zelinsky v. Howe

• Decision Date: 30 June 1931
• Docket Number: 23105.
• Citation: Zelinsky v. Howe, 163 Wash. 277, 1 P.2d 294 (Wash. 1931)
• Court: Washington Supreme Court
• Parties: ZELINSKY v. HOWE.

1 P.2d 294

163 Wash. 277

ZELINSKY v. HOWE.

No. 23105.

Supreme Court of Washington

June 30, 1931

Department 1.

Appeal from Superior Court, Pierce County; Ernest M. Card, Judge.

Action by Walter Zelinsky against William Howe.Judgment for plaintiff, and defendant appeals.

Affirmed.

Kahin &amp Carmody, of Seattle, Wallace W. Mount, of Tacoma, and Orlo B Kellogg, of Seattle, for appellant.

J Charles Dennis, of Tacoma, for respondent.

MITCHELL J.

William Howe and two of his business associates went to southern Oregon in an automobile belonging to, and driven by, him.Walter Zelinsky accompanied them as a guest upon the invitation of Howe.Leaving Tacoma, they went to Portland the first day, and on the next day at a sharp right-angle turn in the Pacific Highway near Sutherlin, Or., Howe ran the automobile into a drainage ditch along the roadway injuring each of the occupants of the car.The accident occurred shortly Before noon, March 29.Zelinsky who was severely hurt, brought this action against Howe to recover damages alleged to have been caused by gross negligence on the part of Howe in driving the car.The answer of the defendant denied the allegations or charge of gross negligence, and affirmatively alleged contributory negligence on the part of the plaintiff.The trial resulted in a verdict for the plaintiff.The defendant has appealed from a judgment on the verdict.

The assignments of error present the question of the sufficiency of the evidence to justify the denial of a motion for a nonsuit at the close of plaintiff's case, and a motion for a directed verdict for the defendant at the close of all the evidence; and the further claim of defendant that, as a matter of law, the plaintiff was guilty of contributory negligence that barred any right of action on his part.

It was stipulated at the trial that at the date of the accident the statutory speed limit in Oregon was thirty-five miles an hour, and further that, by statute in Oregon, no person transported by the owner or operator of a motor vehicle as his guest, without pay, shall have a cause of action for damages against such owner or operator for injury, death, or loss, in case of accident, unless such accident shall have been intentional on the part of such owner or operator, or caused by his gross negligence, or intoxication, or his reckless disregard of the rights of others; that is, in Oregon by statute, as here without it, the rule of gross negligence prevails as giving a guest a cause of action for damages for injury in case of accident.It is upon that rule the respondent brought this action.

There is very little dispute about the controlling facts in the case, which as they would reasonably appear to a jury were about as follows: Respondent had never ridden in an automobile with the appellant prior to this trip.He occupied the front seat with him on the first day, and it appears that on the way to Olympia the car was driven rather fast, speaking generally, and several times on good stretches of the highway it was driven at a speed of about fifty miles an hour, respondent having at one time cautioned appellant as to his speed.At or near Tumwater, the appellant, while driving at about forty-five miles an hour, ran off the highway an appreciable distance in trying to make a sharp right-hand curve; and, it appears that while going through Castle Rock respondent warned appellant that the town marshal would get him on account of his speed.Shortly after leaving Portland the next morning, respondent, still riding on the front seat, cautioned appellant to be careful as there were sharp curves ahead in the highway of...