Winston v. Bacon , 8 Wash. 2d 216 ( 1941 )

As I view this decision, it relieves the favored driver from looking, before he enters an intersection, for vehicles approaching from his left. Heretofore, the rule has been that he must look at a point where he can see approaching vehicles, and that he must stop if he observes that the disfavored driver is not going to yield the right of way. Geitzenauer v. Johnson,161 Wash. 444, 297 P. 174; Stokoe v. Paulson, 168 Wash. 1,10 P.2d 247; Butzke v. Hendrickson, 172 Wash. 302,20 P.2d 7; Finical v. McDonald, 185 Wash. 121, 52 P.2d 1250. "All rights of way are relative, and the duty to avoid accidents or collisions at street intersections rests upon both drivers."Martin v. Hadenfeldt, 157 Wash. 563, 289 P. 533. The favored driver will not be heard to say that he did not see that which was in plain sight. Helliesen v. Seattle Electric Co., 56 Wash. 278,105 P. 458; Silverstein v. Adams, 134 Wash. 430,235 P. 784; Chess v. Reynolds, 189 Wash. 547, 66 P.2d 297.

As I view the facts, respondent could have seen the Johnson car when he said he looked and did not see it. Had he seen it, he, of course, could have avoided the collision. Under the authorities above cited, he should not be heard to say that he did not see it.

Furthermore, I think the majority have given undue weight to the findings of the trial court, attributing a conclusiveness to them which the court has declined to accord the verdict of a jury upon facts hardly distinguishable. Chess v. Reynolds, supra.

Sustaining a judgment in favor of defendant, entered notwithstanding the verdict of the jury in favor of the plaintiff (the favored driver), the court there said:

"While appellant was the favored driver, the undisputed evidence clearly indicates that, while respondent's truck, which was a fairly large one, was in plain sight, appellant did notsee it until practically the instant of contact. Appellanttestified that he looked towards his left, but if he looked anddid not see what was there, he is responsible for what he shouldhave seen. Assuming respondent's negligence, we are satisfied that the trial court properly held that appellant was also guilty of negligence which bars his recovery in this action, and that the motion for judgment in respondent's favor notwithstanding the verdict was properly granted." (Italics mine.)

Believing that respondent was guilty of negligence which was a proximate cause of the collision, I dissent.

MAIN and MILLARD, JJ., concur with BLAKE, J.