Gray v. Burkhalter ( 1925 )

Parker, J.

The plaintiff, Gray, commenced this action seeking recovery of damages for personal injuries suffered by him, as it is alleged, from the negligent operation, near the intersection of Tacoma avenue and Center street in Tacoma, of a fuel auto truck by a servant of the defendant, Burkhalter, in his fuel business. A trial upon the merits in the superior court for Pierce county, sitting with a jury, resulted in verdict and judgment awarding to Gray recovery in the sum of $2,500, from which Burkhalter has appealed to this court.

The only contention here made in behalf of Burk-halter is that Gray should have been denied recovery because of his contributory negligence, and that the trial court should have so disposed of the case as a matter of law, in response to timely appropriate motions made in that behalf. Tacoma avenue runs north and south. Center street is one of the main thoroughfares entering the city from the southwest, crossing Tacoma avenue in a northeasterly direction. At the northwesterly corner of the intersection there is a Standard Oil station, having a driveway entering it from Center street a short distance from the exact corner of the intersection, and another similar driveway entering it from Tacoma avenue. Gray was at the time a motorcycle policeman. Just before he was injured, he was stopping for a short time near the northerly curb of Center street a short distance northeasterly from Tacoma avenue, watching the traffic flowing over the intersection. At the same time Burkhalter’s truck was being driven northeasterly along the southerly side of the roadway of Center street approaching Tacoma avenue. Nearly opposite the driveway entrance to the oil station on the northerly side of Center street the truck was somewhat suddenly turned to the left to the northerly side of the driveway, seemingly as if to enter the driveway to the oil station, which, however, it did not do, hut turned to the right, and, while headed practically straight along the course of Center street and some four to eight feet from the northerly curb, and about the same distance northeasterly past the driveway entering the oil station, came head-on in collision with Gray upon his motorcycle, who was proceeding southwesterly along the northerly portion of the driveway, as other traffic was rightfully so proceeding. Gray had but a moment or two before mounted his motorcycle beyond the northeasterly corner of the intersection and had proceeded across Tacoma avenue.

Just before crossing the avenue he took note of the traffic thereon, and, as he proceeded, he also took note of the fact that ahead of him on the northerly side of Center street, the course he purposed to take and did take, was free from traffic for a distance of a block or more. He also had occasion to notice a machine crossing the intersection, with a view of seeing whether or not it would violate a traffic regulation, immediately following which there loomed up before him the truck in question, with which he came in collision before he could stop his motorcycle or turn it aside and avoid injury to himself. He was moving slowly, probably not more than six or eight miles per hour. The truck driver did not sound any warning.

These, we think, are the principal controlling facts the jurors were warranted in believing, though there is more that might be noticed in the way of details, which, however, would not change our conclusion. Under the circumstances shown, we are quite convinced that it could not he held, as a matter of law, that Gray was guilty of contributory negligence constituting in any measure the approximate cause of his injury. That question was for the jury to decide.

The judgment is affirmed.

Tolman, C. J., Main, Bridges, and Mackintosh, JJ., concur.