Coerver v. Haab

Mallery, J. For a number of months prior to October 15, 1943, the plaintiff Robert A. Coerver and the defendant George F. Haab (who will be referred to hereafter as though they were respectively the sole plaintiff and the sole defendant) were employed at Hanford and lived at Yakima. They entered into an oral arrangement with each other and with three other employees of the Hanford project, who also lived in Yakima, that each of the five would alternate day by day in driving his car from Yakima to Hanford and return, carrying the other four as passengers. The arrangement provided that if, on any particular day, the party whose turn it was to take his car was for any *483 reason prevented from doing so, he would notify the other four and one of them would arrange to take his car. In such a case, however, the one who had failed to take his regular turn would make it up at some later time when he was able. In the event one or more of the parties found it inconvenient to make the trip in the automobile of the one furnishing transportation on a particular day, or if he found it more convenient to find some other means of transportation, there was no obligation upon him to ride in the car of the individual furnishing transportation for the five of them. On November 20, 1943, under this arrangement, the defendant drove his automobile to and from Hanford for the purpose of furnishing transportation not only for himself, but for the other four men. On the return trip from Han-ford to Yakima that evening, they reached Moxee City shortly before five-thirty p. m., it then being about dusk; and at that time a slight mist started to fall. At a point about one mile west of Moxee City, the highway, which is of “blacktop” construction, makes a right-angle turn to the north, after which it intersects a railroad a few hundred feet farther on. The railroad does not cross at right angles to the general line of the highway, and in order to provide for a right-angle crossing of the tracks, the highway curves slightly to the right just before reaching the tracks on the south side and then curves back to the left on the north side of the tracks to resume its northerly direction. When the defendant made the right-angle turn to the north and approached the railroad crossing, it was dark, the lights of the car were on, and the pavement was quite wet. The plaintiff was riding in the front seat with the defendant, who was driving, and Peterson and Toman were in the back seat. As the defendant approached the crossing, another automobile was coming toward him from the north. According to the defendant’s testimony, he was then driving about twenty-five miles per hour. Mr. Peterson said that he had been dozing, but awakened when he heard the defendant say, “Oh! Oh! Oh!” and he would say that they *484 were then traveling about twénty to twenty-five miles per hour. The plaintiff said that the speed of their car was then “fairly rapid.” He testified further that they would normally travel about fifty miles per hour, and that it was the defendant’s habit to slow down when approaching corners and intersections. As he approached the crossing, the defendant applied his brakes. He testified that the car did not respond to the braking, despite the fact that the defendant pulled the steering wheel to the right, but that it skidded straight ahead onto the railroad tracks and over onto his left-hand side of the highway, where it collided with the other automobile, which was coming from the north. Plaintiff sustained injuries in the collision, for which he sought damages in this action. From a judgment in favor of the plaintiff, defendant appeals. We quote from the appellant’s brief: “Two principal questions of law are involved: (1) was the relationship between the defendant and the plaintiff that of host and guest, or was it one of paid transportation? (2) was the defendant guilty of any negligence which was the proximate cause of the collision and the consequent injuries to the plaintiff?” We will consider the second question first. Appellant contends that paragraph 5 of the amended complaint, which reads as follows: “After the car had made the right angle turn the defendant Haab carelessly, negligently and in violation of law increased the speed to a high and excessive rate, to wit: 50 miles per hour and as a result thereof as said car approached the railroad track it became wholly uncontrollable, crossed to the wrong side of the road and collided head-on with a vehicle driving in the opposite direction(Italics ours.) alleges only one act of negligence; to wit, driving at the high and excessive rate of speed of fifty miles per hour. To this the respondent points out our repeated holdings that, where the evidence concerning the accident is not objected to, the pleadings must be deemed to have been amended to conform to the proof. Appellant skidded onto the wrong side of the road and there collided with the on- *485 doming car. Conceding this to be the rule, nevertheless, the appellant contends that the skidding of an automobile is not evidence of negligence and cites Osborne v. Charbneau, 148 Wash. 359, 268 Pac. 884, 64 A. L. R. 251; Cartwright v. Boyce, 167 Wash. 175, 8 P. (2d) 968; Martin v. Bear, 167 Wash. 327, 9 P. (2d) 365; Wilson v. Congdon, 179 Wash. 400, 37 P. (2d) 892; Gayson v. Daugherty, 190 Wash. 133, 66 P. (2d) 1148; Weaver v. Windust, 195 Wash. 240, 80 P. (2d) 766. The skidding of a car, considered by itself as an isolated factor unrelated to surrounding circumstances, is of course not evidence of negligence. That, however, is a far cry from holding that skidding always constitutes a defense to other proven acts of negligence. In the case at bar, the appellant collided with another car on his left-hand side of -the road. An analysis of the cited cases reveals that, where the proximate cause of the collision was the presence of an automobile on the wrong side of the road, the burden is on the party on the wrong side to show that he was there without fault; and the sufficiency of his excuse is a question of fact for the jury or the court, as the case may be. The appellant was thoroughly acquainted with the road in question, had driven it for some months, knew that the pavement was wet and the weather misty, and knew that it was extremely slippery when wet. He states that he approached the point of collision at a rate of twenty-five miles per hour. He knew he was approaching a railroad track where the road angled. Apparently, all that he did was to apply the brakes, which caused the car to slip across onto the wrong side of the road and collide with the oncoming car. The collision, occurring on appellant’s wrong side of the road, is in itself negligence unless he can explain that he was there through no fault of his own. See Crowe v. O’Rouke, 146 Wash. 74, 262 Pac. 136; Martin v. Bear, supra; Haines v. Pinney, 171 Wash. 568, 18 P. (2d) 496; Thomas v. Adams, 174 Wash. 118, 24 P. (2d) 432; Weaver v. Windust, supra; Tutewiler v. Shannon, 8 Wn. (2d) 23, *486 111 P. (2d) 215; Cook v. Rafferty, 200 Wash. 234, 93 P. (2d) 376. The trial court’s reasoning as to the sufficiency of the excuse is well stated in his memorandum opinion, from which we quote in part: “In the case at bar, however, there was nothing done by any other person or automobile that created an emergency for the defendant. He testified that he was very familiar with the highway, because he had traveled it twice daily for about seven months. He also stated that he observed the other car approaching, and there is no evidence of any obstruction to the view. “. . . Here, the defendant was traveling at twenty-five miles per hour over a familiar highway, with a slippery ‘black top’ surface, approaching another car and a railroad crossing where the road swerved slightly to the right. If at that time the plaintiff’s position was dangerous, it was a situation created entirely by himself in traveling at too great a speed to negotiate the crossing and the passing of the other car, under the circumstances then existing(Italics ours.) We are not prepared to hold that the court erred in finding that the excuse for being on the wrong side of the road was insufficient. As to the first question, the appellant invokes Rem. Rev. Stat, Vol. 7A, § 6360-121 [P.P.C. § 295-95], which reads as follows: “No person transported by the owner or operator of a motor vehicle as an invited guest or licensee, without payment for such transportation, shall have cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator: . . . ” (Italics ours.) Appellant contends that, since appellant did not pay the state of Washington for a license to drive a car for hire, and since the department of licenses does not recognize share-the-ride drivers as public carriers, and in as much as such drivers lack many of the essentials required of public carriers, such as certificates, insurance, and special licenses, they should therefore not be treated as having received *487 ‘•‘payment for such transportation” as contemplated by the statute. We have never held that a driver must be a licensed public carrier to receive the payment for transportation that is contemplated by the statute here involved, or that exclusion from the exemption from liability applied only to public carriers. Appellant contends that a share-the-ride plan is not to be considered as benefit to the driver, but rather that it is an aid to the war effort. We think it is both, where a driver receives a ride for giving a ride. The appellant contends that there is no binding obligation or contract between the parties to the agreement, because the defendant could, when it was his turn to ride with one of the other parties, do so or not as he pleased, with none of the other parties having any legal recourse to compel him to do so. The challenge to the validity of a contract for transportation upon the ground that the one paying for it cannot be compelled to take it, is a novelty that arises out of a confusion between the elements of consideration and benefits in a contract. A druggist’s right to compel you to pay for the pills you buy is not contingent upon his right to compel you to take them. That the “arrangement” herein had all of the elements of a contract, is scarcely controversial. If it were contended that appellant could have accepted the rides that he did accept with no obligation to repay in kind, we would have a different question. That contention is not made. Even if we were to concede that appellant could withdraw from the arrangement without future obligation, it would avail appellant nothing. We adhere to the rule laid down in 12 Am. Jur. 609, § 114: “If a bilateral agreement, not originally binding on one of the parties, has been performed by him, so that the other party has actually received the promised benefit, the latter is bound to perform his promise.” Regardless of what the rights of the parties may have been as to the executory part of the contract, it is apparent *488 that the instant cause of action arose out of the executed part. We hold the appellant was not transporting the respondent “without payment for such transportation” as contemplated by the- statute. He therefore does not come under the host-guest exemption from liability. The judgment is affirmed. Steinert, Blake, Robinson, Jeffers, and Grady, JJ., concur.