Roberts v. Leahy , 35 Wash. 2d 648 ( 1950 )

Mallery, J.

Plaintiffs appeal from a judgment n.o.v. in an automobile accident case.

Fourth avenue and Howard are paved streets intersecting at right angles in Spokane. Fourth avenue runs east and west on the level. Howard street ascends southward at a moderate grade from Third avenue, three hundred twenty-feet north, to Fourth avenue, intersecting it on the level, then ascends again to Fifth avenue. The accident occurred at this intersection at 8:30 p. m., November 9, 1946.

The appellant approached the intersection driving west" on Fourth avenue. Respondent’s taxi, proceeding south on Howard street, had the right of way as provided in Rem. Rev. Stat., Vol. 7A, § 6360-88 [P.P.C. § 295-27]. Respondent’s right hand side of Howard street was obstructed midway in the block by a ditch that had been dug from the center line to the west curb. The earth had been piled on the south or uphill side of the ditch to a height of four feet and was marked by two lighted red lanterns. It was necessary for respondent’s taxi to drive into the left side of the street to go around it.

Appellant’s view to his right before reaching the intersection was obstructed by the Chancery building located twelve feet from the east curb of Howard street and ninety-nine feet north of Fourth avenue, a two-foot stone bulkhead near the south side of the Chancery building, five large deciduous trees planted in the north parking strip along Fourth avenue and in the east parking strip along Howard street, and by a car parked at the east curb of Howard street. The jury could well have found that a west-bound driver twenty-five feet from the intersection could look to his right, down Howard street, and see the center of the intersection of Third avenue and Howard street.

Appellant approached the intersection at about twenty-five miles an hour. At a point ten to fifteen feet east of the easterly part of the easterly pedestrian crosswalk at Howard street he slowed to twelve or fifteen miles an hour. At this point he looked to his right and had an unobstructed view down Howard street to the earth barricade with its lighted red lanterns on the west half and all the way to Third avenue on the east half. He saW no automobile approaching.

After appellant’s automobile entered the intersection, his wife observed the headlights of respondent’s vehicle ascending Howard street from Third avenue at high speed, headed directly for appellant’s vehicle and very close. She screamed and, at the same moment, appellant observed, for the first time, the headlights coming directly at him. He accelerated his car in an attempt to avoid a collision. At the moment of impact his speed was from fifteen to twenty miles an hour.

Respondent’s driver did not see appellant’s vehicle until it was directly in front of him on Fourth avenue. He applied his-brakes and swerved to the right to avoid a collision. The taxi traveled the fifty feet immediately before impact at a speed of thirty to thirty-five miles an hour.

The impact occurred in the northwest quarter of the intersection close to the westerly pedestrian crosswalk. The front of the taxi struck the right rear quarter of appellant’s vehicle so as to catapult it southwesterly and cause it to roll over one and a quarter times. It came to rest three to five feet north of the south curb of Fourth avenue and twenty-five to forty feet west of the curb of Howard street. After impact the taxi proceeded into the southwesterly part of the intersection before it came to rest.

Respondent does not deny his driver’s negligence, but moved for judgment n.o.v. on the ground that appellant, the disfavored driver, was guilty of contributory negligence as a matter of law in not yielding the right of way to the taxi on his right.

When a favored vehicle is within view to the right of the disfavored vehicle it will be conclusively held that the disfavored driver actually saw what he could have seen if he had performed the duty of looking. His failure to do so is negligence as a matter of law. Rhodes v. Johnson, 163 Wash. 54, 299 Pac. 976; Strouse v. Smith, 166 Wash. 643, 8 P. (2d) 411; Hoenig v. Kohl, 182 Wash. 245, 46 P. (2d) 728; Chess v. Reynolds, 189 Wash. 547, 66 P. (2d) 297; Hefner v. Pattee, 1 Wn. (2d) 607, 617, 96 P. (2d) 583; Hauswirth v. Pom-Arleau, 11 Wn. (2d) 354, 373, 119 P. (2d) 674; Bleiler v. Wolff, 23 Wn. (2d) 368, 161 P. (2d) 145; Calvert v. Seattle, 23 Wn. (2d) 817, 162 P. (2d) 441; Plenderlieth v. McGuire, 27 Wn. (2d) 841, 180 P. (2d) 808; McClellan v. Great Western Fuel Co., 32 Wn. (2d) 202, 201 P. (2d) 221. See, also, Johnson v. Washington Route, 121 Wash. 608, 209 Pac. 1100, and Silverstein v. Adams, 134 Wash. 430, 235 Pac. 784, where many cases are cited.

However, if the disfavored driver looks to his right from a proper place and cannot see the favored vehicle because it is hidden by a condition in the street, he has discharged his duty of using due care and is not guilty of negligence as a matter of law in proceeding into the intersection.

“A number of times this court has held that, when a person testifies that he looked and did not see an object, which plainly he could have seen, that he will not be heard to say that he looked and did not see. In other words, the situation is the same as though he had looked and seen the object.” Silverstein v. Adams, supra.

This rule is not applicable in the instant situation, where the issue of fact is whether or not this condition in the traveled part of the street hid the favored vehicle. Testimony that the disfavored driver looked and did not see it, if believable, is evidence that it was hidden. It raises a question of fact for the jury to determine.

We now pass to the question of whether the physical situation presents facts so conclusive in their necessary implications as to make it unbelievable to reasonable minds that the taxi was hidden by the barricade when appellant entered the intersection.

An examination of the diagram of the vicinity of the collision indicates that when appellant looked to his right on entering the intersection he was at “. . . about the pedestrian lane.” From this position the barricade would have obscured from his view of Howard street an area the shape of an acute right triangle. The base of this triangle would have measured twenty-five feet along the face of the barricade, the long leg of the triangle would have measured about one hundred feet north along the west curb of Howard street and the hypotenuse would have measured about one hundred five feet extending from the east end of the barricade, which was in the center of Howard street, to the far end of the long leg.

If, under the evidence most favorable to appellant, the taxi could have been within the area of this triangle when appellant entered the intersection, the question cannot be resolved against him by the court as a matter of law.

Respondent’s driver testified that a car going in the opposite direction passed him near the barricade. What effect this may have had in keeping the taxi on its own side of the street and within the obscured area is not a matter of law for us to pass upon. It is enough to say that from the point where appellant looked down Howard street, he traveled about sixty-five feet to the point of impact in about three seconds according to the estimated speed of his car. If respondent’s taxi was behind the obstruction within the obscured area at the time appellant looked and did not see it, it would have had to travel about one hundred eighty feet in the same time. This would have been possible at forty miles an hour, a speed possible within the evidence in the case.

Since the accident could have happened as appellant said it did, reasonable minds could reach different conclusions regarding his contributory negligence. Therefore, it was a question for the jury. See Beck v. Dye, 200 Wash. 1, 6, 92 P. (2d) 1113, 127 A. L. R. 1022; Billingsley v. RovigTemple Co., 16 Wn. (2d) 202, 204, 133 P. (2d) 265, 38 Am. Jur. 1052; and the cases cited therein; Gavin v. Everton, 19 Wn. (2d) 785, 789, 144 P. (2d) 735; McBeach v. Northern Pac. R. Co., 32 Wn. (2d) 910, 204 P. (2d) 248.

The judgment is reversed with instructions to reinstate the verdict of the jury.

Robinson, Hill, Grady, and Hamley, JJ., concur.