Sebastian v. Rayment , 42 Wash. 2d 108 ( 1953 )

Weaver, J.

Two automobiles collided in the middle of an uncontrolled intersection in Olympia. The favored driver, Mr. Rayment, approaching the intersection from the east, was charged with excessiye speed and with a failure to maintain a proper lookout. The disfavored driver, Geraldine Sebastian, approaching the intersection from the south, was charged with failure to keep a proper lookout and with failure to yield the right of way.

As a result of the collision, the car of Mr. Rayment caromed into the automobile of Harry Ayers, which was legally parked. He entered suit against the owners of both cars. The actions were consolidated for trial. By stipulation, it was agreed that Mr. Ayers would have judgment for damages suffered by his car against either or both car owners involved in the accident, dependent upon the determination of liability.

The trial court entered judgment in favor of H. M. Sebastian (father of Geraldine Sebastian) without damages because of failure of proof, dismissed Mr. Rayment’s cross-complaint, and, in accordance with the stipulation, entered judgment in favor of Mr. Ayers against Mr. Rayment. From this judgment, Mr. Rayment appeals; Mr. Sebastian cross-appeals.

By appropriate assignment of error, appellant Rayment has challenged the trial court’s finding that Miss Sebastian was driving between fifteen and twenty miles an hour and that the speed of Mr. Rayment’s car was between thirty-five and forty miles an hour, as they entered the intersection. The evidence does not preponderate against this finding. We will not disturb it.

Appellant Rayment’s second and third assignments of error are directed against paragraph Y of the trial court’s findings of fact, which reads:

“When the front wheels of plaintiff’s [Sebastian] car had reached the south sidewalk of Union Avenue, the driver looked first to the right, then to the left, and then to the right again at which time she first saw the car of defendant approaching in the center of Union Avenue. The impact followed almost immediately. Robert Jack Rayment, defendant, failed to keep a proper lookout ahead.”

and against the trial court’s conclusion that Miss Sebastian was free of contributory negligence.

It is unnecessary for us to discuss the question of whether Mr. Rayment failed to keep a proper lookout ahead. He was exceeding the speed limit, which was twenty-five miles per hour. RCW 46.48.020. The record supports the trial court’s conclusion that this was negligence which proximately caused the accident and precluded his recovery.

Miss Sebastian, in response to a question as to what she did upon approaching the intersection, testified:

“I looked to the right and then to the left and to the right again as I entered.”

Her testimony continued:

“Q. What did you see when you looked to the right? A. I saw nothing. Q. How far could you see down toward Franklin Street? A. Approximately a half a block.”

One witness, a passenger in Miss Sebastian’s car, testified that, as they entered the intersection, she looked to the right and saw Mr. Rayment’s car a half a block away. The block was one hundred and sixty feet long.

Traveling at forty miles an hour, Mr. Rayment could not have traveled more than sixty feet from the time Miss Sebastian first looked to her right until the collision occurred. By her own testimony, it appears that Miss Sebastian did not see what was there to be seen.

It is the duty of a driver approaching an uncontrolled intersection to “give right of way to vehicles on his right, simultaneously approaching a given point within the intersection.” RCW 46.60.150. She does not claim she was “deceived” nor could she have been, for she failed to see the automobile approaching from her right. Hauswirth v. Pom-Arleau, 11 Wn. (2d) 354, 119 P. (2d) 674.

In Hoenig v. Kohl, 182 Wash. 245, 248, 46 P. (2d) 728, wherein the facts are almost identical with the facts of this case, we said:

“There is here no room for reasonable minds to differ. If the appellant looked, as it is said he did, then he saw, or was charged with the duty of seeing, the approaching car, and was bound in law to know that its rights in the intersection were superior to his own. Being the disfavored driver, it was incumbent upon him to yield the right of way unless the situation was such as to clearly indicate that he could cross with a fair margin of safety. In the light of the quoted testimony, no reasonable mind can believe that the appellant exercised that care which the law required of him . . . Upon the uncontradicted testimony, reasonable minds must agree that the appellant was guilty of contributory negligence in driving into the intersection under the conditions shown.”

The fact that a passenger in Miss Sebastian’s car saw Mr. Rayment’s car approaching the intersection from the right “going around forty” miles per hour, negatives any inference that Miss Sebastian could have crossed the intersection with a fair margin of safety. That the collision occurred, proves that she could not have done so.

Negligence of the favored driver which proximately contributes to the accident may prevent his recovery from the disfavored driver. But such negligence will not in itself bring recovery to the disfavored driver; he too must be free from fault amounting to a proximate cause. The doctrine of contributory negligence is founded on the principle that no one is ever absolved from exercising reasonable and ordinary care for his own safety in the light of existing circumstances. Hauswirth v. Pom-Arleau, supra.

The evidence does not support the conclusion of the trial court that Geraldine Sebastian “was not guilty of contributory negligence.”

Our disposition of the case makes it unnecessary to discuss the assignments of error directed to the questions of damage.

The judgment dismissing the cross-complaint of Robert Jack Rayment is affirmed. The judgment in favor of H. M. Sebastian against Robert Jack Rayment is reversed and remanded with direction to dismiss the action. In accordance with the stipulation of the parties, judgment shall be “entered against plaintiff Sebastian and defendant Rayment jointly” in favor of Harry Ayers in the sum of $304.97 together with costs.

Mr. Rayment, having succeeded in a modification of the judgment against him, will recover costs on this appeal.

Grady, C. J., Mallery, and Schwellenbach, JJ., concur.