95 Wash. 166 | Wash. | 1917
The purpose of this action was to recover damages for personal injuries, and also damages to a motorcycle. After the issues were framed, the cause came on for trial before the court and a jury. At the conclusion of the plaintiff’s evidence, the defendants moved the court to discharge the jury and enter a judgment in their favor. This motion was sustained, and from the judgment subsequently entered dismissing the action, the plaintiff appeals. The facts are these:
On November 26,1914, Oscar Barth, who brings this action by his guardian ad litem, while riding a motorcycle, collided with an automobile driven by Joseph Ambrose Cunningham, and owned by W. J. Harris and wife, and operated in their behalf. The accident took place at the intersection of Hamilton street and Mission avenue, in the city of Spokane, at about two o’clock p. m., on the day mentioned. Hamilton street runs north and south; Mission avenue, east and west. A double street car track runs down the center of Hamilton street. In the center of Mission avenue there is a parkway, or parking strip, on either side of which are driveways used by vehicles. Mission avenue is sixty feet, or more, wide from curb to curb; Hamilton street approximately fifty feet.
On the day of the accident, Oscar Barth was driving his motorcycle south on Hamilton street, maintaining a course between the west street car track and the curb on the west side of the street. When within about ten feet of the north line
. The respondents open their brief with a motion to dismiss the appeal for the reasons:
“That the judgment of nonsuit was made and entered more than ninety days prior to the filing of a notice of appeal.
“That the notice of appeal is from a second judgment, entered more than ninety days after the original judgment was entered of record.
“That the motion for a new trial was determined and denied more than ninety days prior to the filing of the notice of appeal.
“That there is no sufficient notice of appeal.”
The motion to dismiss the appeal is without merit. If it be assumed that the clerk’s minute entry was a judgment, which it was not, the appeal was taken within the statutory time after the motion for new trial was overruled. The right of the clerk to enter a judgment must be derived from the statute. Section 431, Rem. Code, provides, when a trial by jury has been had, “judgment shall be entered by the clerk immediately in conformity to the verdict.” In this case, the jury returned no verdict, the cause being withdrawn from their consideration by the court. There was no verdict upon which the clerk could enter a judgment, even if he had assumed to do so. In the cases of Wagner v. Northern Life Ins. Co., 70 Wash. 210, 126 Pac. 434, 44 L. R. A. (N. S.) 338, and Paich v. Northern Pac. R. Co., 86 Wash. 379, 150 Pac. 814, there was considered the effect upon a prior judgment of a subsequent judgment entered notwithstanding the verdict of the jury. Those cases have here no application. The appeal was taken from the only judgment entered in the cause, within the time fixed by the statute. The motion to dismiss will therefore be denied.
Upon the merits,-the controlling question is whether Oscar Barth was guilty of contributory negligence, as a matter of law, in driving his motorcycle across the intersection of Hamilton street and Mission avenue at a speed greater than four miles per hour,' or one mile in fifteen minutes, as stated in the ■statute. It is hot claimed upon the present record- that the
In this case, the motorcycle was first upon the intersection where the accident occurred. The automobile was some distance to the west. There being no other person upon the intersection when the motorcycle entered thereon, the statute limitation of four miles per hour is not applicable. In accordance with the ordinance of the city of Spokane, the speed limit was twenty miles per hour, and the motorcycle had the right of way, because it was traveling upon a north and south street. Had the automobile been going at a speed not greater than twenty miles per hour, as fixed by the ordinance, the motorcycle would have had ample time to have crossed the intersection and passed the south line of Mission avenue before the automobile reached the west line of Hamilton street. There being no one upon the intersection when the motorcycle entered thereon, and that machine being driven at less than the speed required by the ordinance, and having the right of way, contributory negligence, as a matter of law, cannot be predicated upon a speed which exceeded the maximum fixed by either the statute or the ordinance.
Neither can it be said that there was contributory negligence; as a matter of law, under § 5572, Rem. & Bal. Code, in effect at the time of the accident, which provides that no person shall drive an automobile or motor vehicle at a speed “greater than is reasonable and proper, having regard to the traffic and use of the way by others, or so as to endanger the life or limb of any person; . . .” When the driver of the motorcycle first saw the automobile, it was two or three hundred feet west of the intersection,, and he was ten feet from the intersection. At this time, he did not observe the
We think the trial court was in error in taking the case from the jury. The judgment will, therefore, be reversed, and the cause remanded with direction to grant a new trial.
Ellis, C. J., Fullerton, Chadwick, and Morris, JJ., concur.