Smith v. Bratnober

Holcomb, J. — Thisaction is for personal injuries growing out of a collision between the disabled automobile of respondent and the Chrysler coupe of appellant. The case was tried to the court and a jury. Appropriate motions challenging the sufficiency of the evidence were timely made by appellant, and over his objections the cause was submitted to the jury. A verdict was returned in favor of respondent for $3,500, upon which judgment was entered. Motions for judgment n. o. v. and for a new trial were likewise timely, but unsuccessfully, made. This appeal results. The collision occurred on a graveled road between Redmond and Issaquah, on the east side of Lake Sammamish, at about 9:15 p. m. on Sunday, July 22, 1934. The atmosphere was clear and the weather dry. The road is a main traveled highway and is level for all practicable purposes. Immediately north of the place of collision is a long, slight, flat curve, about nine hundred feet in length, termed by the engineer a three-degree curve. Respondent introduced evidence to the effect that he was a well digger and on the day of the accident had been digging a well on the east side of Lake Washington, which he and his partner finished about four o’clock, thereafter working a short time on his partner’s own car. Returning home in his 1924 Model T Ford, which was equipped with an improvised truck *246 bed, or compartment, at the rear of the seat for carrying his tools, he visited with various acquaintances for nearly two hours and then proceeded in a southerly direction from Renton. Because of the poor operation of the steering gear, he stopped, discovered the radius rod bent, obtained a flashlight from the tool compartment, and straightened the rod. When replacing the flashlight, he noticed a flask of whiskey which his partner had put in the car for him and drank about a quarter of a pint of it. He then proceeded on his way at about twenty-five miles per hour, which, he said, was as fast as his car would go. Within about half a mile, the steering apparatus became unmanageable and the car suddenly turned to the left, negotiating- a complete arc within the width of the highway, which at that place was twenty-seven and a half feet. In swinging around, the hub cap of his ear scratched the guard rail on the easterly side of the road, coming to a stop about two or three feet from the south end of such guard rail. The front wheels were completely buckled so that the car could not be moved, and all portions of the car were on the east side of the road, with the head and tail lights all burning. While in this position, another car, constantly referred to in the record as the Matilla car, came from the south, passed respondent on the west side, and stopped seventy feet ahead of him on the east side of the road close to the guard rail. After the Matilla car had passed, respondent stepped out on the right-hand side and went to get his flashlight from the compartment to flag traffic. Looking north he saw the head lights of appellant’s car coming toward him, and almost instantly he was hit and knocked unconscious. A car going- south, as appellant’s car was going, would *247 have a clear view of the entire road for four hundred twenty feet ahead to the point of the collision and could see the entire east half of the road when he was five hundred feet hack from the point of collision. The facts as related by respondent were corroborated, to some extent, by three related and interested witnesses and one unrelated and, apparently, disinterested eye witness. The eye witness, who was riding in a car going north, approached the disabled car of respondent from the opposite direction from which appellant’s car approached. He said he had no difficulty seeing the disabled car in and across the road when he was five or six hundred feet from it, and that it was entirely on the east side of the road with one end of it two or three feet from the east guard rail; that he saw appellant’s car at a distance of two hundred feet down the road before it hit respondent’s car, and that it was travelling between forty and fifty miles per hour and did not slack its speed. The car in which he was riding stopped one hundred to one hundred fifty feet from the point of the impact. He also said that the force of the collision was such that it knocked respondent’s car forty feet from the south end of the guard rail and knocked the heavy box, or compartment, that was bolted to the rear of his car, seventy-five to one hundred feet from where the car came to rest; and that appellant’s speed was so great it knocked or dragged respondent’s car forty or forty-five feet and then went thirty feet further, ending in the ditch on the west side of the road, a total distance of one hundred forty feet from the point where appellant said he applied his brakes hard until they were set. Appellant stated he had hydraulic brakes on his car which were in perfect condition; and that, when *248 travelling thirty-five miles per hour, as he said he was travelling prior to the collision, he conld have stopped his car in fifty or fifty-five feet. Respondent submitted his case on two theories: First, that appellant was negligent in crossing over to the left side of the road and colliding with his car ; and second, under the doctrine of last clear chance. Appellant alleged, and contended at the trial, that respondent was drunk, and that being drunk is conclusive proof that he was negligent in not getting out of the dangerous place on the road as appellant’s car approached. The statement of facts shows that the testimony of seven witnesses on behalf of respondent as to sobriety immediately before and after the accident was purposely omitted from the record as not being material. Appellant caused the trial court to certify that the statement contained all of the evidence and all of the material facts. That being the condition of the record, all contention based upon the drunkenness of respondent as a phase of his contributory negligence will be disregarded. Appellant also vigorously insists that the testimony of respondent should be wholly disregarded because it is opposed to the law of physics and wholly incredible. We do not so consider. Whether his car could and did behave in such a manner when his steering gear became out of repair is not inherently improbable or incredible. The facts were not conceded nor beyond dispute. The matter of the credibility of respondent and the probability of that testimony was a question of fact for the jury and not a question of law for the court to determine. Therefore, the trial court would have erred had it sustained the challenge of appellant to the sufficiency of the evidence or granted a motion for judgment n. o. v. upon that ground. Cf. *249 Tooker v. Perkins, 86 Wash. 567, 150 Pac. 1138, and Hartnett v. Standard Furniture Co., 162 Wash. 655, 299 Pac. 408. Appellant testified that he was blinded by the bright headlights of the Matilla car, parked and facing north, so that he could not see beyond it, and argues that this brings the case within the rule announced in several cases by this court that it is a well recognized fact that objects to the rear of automoble headlights are obscured to the vision of the driver of an approaching car until after such lights are passed. McMoran v. Associated Oil Co., 144 Wash. 276, 257 Pac. 846; Griffith v. Thompson, 148 Wash. 243, 268 Pac. 607; Frowd v. Marchbank, 154 Wash. 634, 283 Pac. 467; Long v. Hicks, 173 Wash. 17, 21 P. (2d) 281; Brauns v. Housden, 186 Wash. 149, 56 P. (2d) 1313. All of those cases were upon different facts and circumstances than are present here. Here, that was a question for the jury. Skates v. Conniff, 153 Wash. 538, 280 Pac. 15, and Knutson v. McMahan, 186 Wash. 518, 58 P. (2d) 1033. In this ease, since appellant was an interested witness, the jury had the right to disregard his testimony and resolved that question against him. Thomas v. Adams, 174 Wash. 118, 24 P. (2d) 432. Rem. Rev. Stat., §6362-41 [P. C. §196-41] (9), requires a car, when meeting another car, to seasonably turn to its right-hand side of the road; and we have held that, when a car is on the left-hand side of the road and involved in an accident, the burden of justifying such driving is on the person driving on the wrong side of the road. Stack v. L. J. Dowell, Inc., 172 Wash. 9, 19 P. (2d) 125; Thomas v. Adams, supra; Wilson v. Congdon, 179 Wash. 400, 37 P. (2d) 892. *250 One of the appellant’s witnesses said that appellant-drove straight down the road without swerving. That alone would make it a sufficient question for the jury. Upon all of the facts above stated and others present in the record, it is manifest that appellant had a last clear chance to avoid the accident. Upon his own testimony that he could have stopped his car within fifty or fifty-five feet, the testimony of others that they saw the position of respondent’s car four hundred or five hundred feet away, and the testimony of respondent himself that he saw appellant’s car seventy feet away, far enough away to give time to stop, makes a stronger case than that of Mosso v. Stanton Co., 75 Wash. 220, 134 Pac. 941, L. R. A. 1916A, 943. To the same effect is Chapin v. Stickel, 173 Wash. 174, 22 P. (2d) 290. The conditions existing are very like those in Smith v. Gamp, 178 Wash. 451, 35 P. (2d) 40, which is controlling. Cases relied upon by appellant, Hartley v. Lasater, 96 Wash. 407, 165 Pac. 106; Bullis v. Ball, 98 Wash. 342, 167 Pac. 942; Shanley v. Hadfield, 124 Wash. 192, 213 Pac. 932; Frowd v. Marchbank, supra; Long v. Hicks, supra; Neeley v. Bock, 184 Wash. 135, 50 P. (2d) 524, are upon vitally different facts and circumstances than the present case. Hence, the trial court was correct in submitting to the jury the rule of last clear chance. No complaint is made of the form of the instruction. The contention is made that several instructions are duplicitous and overemphasize the duty resting upon appellant. Several statutes and grounds of negligence were relied upon by respondent. While necessary for the trial court to submit each ground of negligence, without unnecessary repetition, a judgment is not to be reversed for such unnecessary repetitions unless, in *251 the furtherance of justice, it sometimes becomes necessary to grant a reversal, which is not true here. Chicago, Milwaukee & St. Paul R. Co. v. Alexander, 47 Wash. 131, 91 Pac. 626; Cecchi v. Bosa, 186 Wash. 205, 57 P. (2d) 1064. In the last cited case, we said: “A party has the right to have every issue that is properly presented by the pleadings and evidence submitted to the jury in clear, concise and intelligible language, within the comprehension of persons who are ordinarily not educated in law. ’ ’ Appellant finally contends that a new trial should have been granted him because of the refusal to give certain requested instructions reading: No. 7. “The defendant was under no obligation to stop or check his speed before meeting another car, and it is only when lights or other circumstances indicated that the highway is blocked or that the passage is so narrowed as not to afford a safe passage within the speed limit that he is chargeable with negligence if he does not check his speed.” No. 9. “When two automobiles meet each other on a highway in the night-time, they may, under all ordinary conditions proceed to pass at any rate of speed within the statutory limit without being subject to a charge of negligence.” At first impression, we thought this contention correct. The court, however, gave the following instruction-: No. 14. “The operator of a motor vehicle upon the highway is entitled, particularly at night, to assume that if there are any objects or obstructions in the highway that a red light will be displayed or that a warning of some kind will be given him of its location, and it is not negligence in itself for one to proceed at a lawful rate of speed. “The operator has a right to indulge in the presumption that no car will be parked or standing on the highway in a place prohibited by statute, or with *252 out lights, and he can not be charged with negligence for indulging such presumption until such time as he knew, or by the exercise of reasonable care should have known, to the contrary.” The last quoted instruction seems to have correctly covered the law under our statute and even under the theory of appellant as presented by the two requested instructions above quoted. We conclude that there is no reversible error in the trial of the case, and the judgment is affirmed. Millard, C. J., Tolman, Steinert, and Geraghty, JJ., concur.