253 P. 458 | Wash. | 1927
A Hupmobile sedan belonging to and driven by F.J. Stidell collided with a Cadillac touring *349 car belonging to Glenn H. Davidson, driven by his daughter Katherine, in the intersection of Western avenue and Spring street in Seattle. Both cars were damaged. Mr. Stidell sued Mr. Davidson and his daughter Barbara, alleging that the collision was caused by the negligent driving of the daughter Barbara. She appearing separately denied generally the allegations of the complaint. Mr. Davidson, appearing separately, denied all negligence on the part of the driver of his car and affirmatively alleged damages to his car caused by the negligent driving of plaintiff's car. This affirmative matter was denied by the plaintiff. On the trial without a jury, findings of fact and conclusions of law were entered in favor of the plaintiff against Mr. Davidson and his daughter Barbara. Written exceptions to the findings were duly made and filed. Findings of fact proposed by the defendants were denied and exceptions taken and filed. Defendants' motion for a new trial was denied. The defendants have appealed from the judgment in favor of the plaintiff.
[1] We are unable to understand why there was any finding or judgment against Barbara Davidson. There is not in the whole record a particle of proof that she owned or had any interest whatever in the Cadillac car. It belonged to her father. Nor is there any proof that she was in any way connected with the purpose for which the car was being used at the time of the accident. There was no proof that she was in the car. On the contrary, the car was being driven by her sister Katherine. The judgment against her is wholly without foundation.
[2] The collision occurred in the day time. There was no other traffic in the vicinity. Western avenue runs north and is crossed at right angles by Spring street. Respondent's car was going northerly on the *350 east side of Western avenue. Appellant's car was going westerly on the north side of Spring street. The cars collided shortly after appellant's car got into the intersection. It appears that the trial court, ignoring the proof on behalf of the appellant, adopted the theory and proof on behalf of the respondent. The court found
"That the plaintiff F.J. Stidell first entered the intersection at this corner and was entitled to the right of way, which the driver of the defendant's car failed to concede, and that such failure was the cause of the collision."
Manifestly it was upon this finding that the conclusion and judgment for the respondent were given. As already stated, exception was taken to the finding. Rem. Comp. Stat., § 1736 [P.C. § 7321], provides that, in an action, legal or equitable, tried by the court without a jury, wherein a statement of facts or bill of exceptions shall have been certified,
"The evidence of facts shown by such bill of exceptions or statement of facts shall be examined by the supreme court denovo, so far as the findings of fact or refusal to make findings based thereon shall have been excepted to."
The rule applies here, we try the case de novo. In a number of cases, including the recent ones of Swift v. Starrett,
There is other important testimony overwhelmingly in favor of the appellant, upon which the court made no finding that is controlling, in our opinion, under the law applicable to the case. It centers largely around the speed of the cars with reference to the place of the collision. Respondent and his companion admitted a probable speed of respondent's car of fifteen miles per hour in the intersection. Rem. Comp. Stat., § 6339 [P.C. § 219], makes it unlawful to drive over or across any street intersection within the corporate limits of any city or town at a rate of speed faster than twelve miles per hour or at a rate of speed that will endanger the property of another or the life or limb of any person. There was no testimony on behalf of the respondent as to the speed of appellant's car.
On the other side, the driver of appellant's car and her companion testified that they slowed down to six or eight miles an hour on approaching and entering the intersection, and two other witnesses, wholly disinterested, said it was driven very slowly. The driver of appellant's car and three other witnesses testified that respondent's car was going very fast, they variously estimated its speed at twenty-five to thirty-five miles an hour. The companion of the driver of appellant's car did not estimate the speed of respondent's car except that it was going very fast. Respondent's car was driven straight ahead without any attempt to avoid a collision. The driver of the appellant's car and her companion both testified that, in approaching the intersection and when near to it, they looked to the south but saw no traffic aproaching within their view, limited by a building immediately in the southeast corner of the street intersection, that then they looked *352 to the right and in a few seconds, upon observing respondent's car within about twenty feet, the driver turned appellant's car to the right to avoid a collision, but without success. Appellant's car was struck under the left front fender, bending it upward. It was knocked over to a position a little north of the northeast corner of the intersection, while the respondent's car with its right front wheel broken completely off continued one hundred feet, by measurement, northerly on Western avenue before it stopped. These facts, upon which the court made no finding, are decidedly against the respondent.
In some of our cases that arose prior to the act of 1921, Rem. Comp. Stat., § 6340 [P.C. § 222], consideration was given to ordinances having a provision such as is mentioned in Sinclairv. Wiles Foy,
Subdivision 6, § 6340, Rem. Comp. Stat. [P.C. § 222], just above referred to, is a new law. It provides:
"Drivers, when approaching highway intersections, shall look out for and give right of way to vehicles on their right, simultaneously approaching a given point: . . ."
The statute covers this case precisely. Both drivers were approaching the intersection, and certainly the *353
respondent will not be permitted to say that the cars were not simultaneously approaching a given point when he, greatly exceeding the lawful rate of speed and without taking any precaution whatever, did collide with appellant's car approaching from the right, after precaution on the part of the driver of appellant's car and upon its approaching at a reasonable and lawful speed not to exceed one-third or one-fourth of the speed maintained by the respondent's car. It was respondent's duty under the statute to "look out for and give right of way to" appellant's car. This statute has been under consideration in a number of our cases and in Radford v. Seattle,
"In the recent cases of Snyder v. Smith,
Other cases to the same effect are Sliter v. Clark,
The case of Romano v. Dulmage Motor Co.,
"On approaching the intersection, the respondent looked south by a building on the southeast corner of the intersection, and seeing no car coming from that direction, she then looked north, and in a moment of time the cars collided, that of the appellant being driven at a high rate of speed."
The provision of the ordinance was quoted and, in affirming the judgment, we held that, if the law had been obeyed, the collision would not have happened, the fault of the driver of appellant's car was the cause of the accident. The same is true in the present case. Respondent's failure to observe and comply with the statute constituted negligence on his part that was directly related to and, in our opinion, constituted the proximate cause of the collision and resultant damage.
Upon the question of damages to the automobile suffered by the appellant the evidence is clear and certain. There is no dispute whatever that it amounted to as much as $464.
The judgment appealed from is reversed, and the cause remanded with directions to the trial court to set it aside and enter a judgment in favor of the appellant Glenn H. Davidson against the respondent F.J. Stidell in the sum of $464.
*355TOLMAN, MAIN, and FULLERTON, JJ., concur.
