Whisler v. Weiss

I am not able to agree with the majority opinion. This conclusion is based upon the testimony of the litigants and their respective witnesses, and particularly upon the photographs of the plaintiff-appellant's automobile, the plat of the intersection of Roy street and Dexter avenue which was furnished by respondent's witness Fahey, and the itemized bill for repairs to defendant-respondent's automobile, showing, without question, that all of the damage sustained by it in the collision was in the front of the radiator, headlights, and front fenders.

As indicated by the majority opinion, this case involves the respective legal rights of the two parties whose automobiles collided in a street intersection, one of whom, the appellant Mildred Whisler, was proceeding on an arterial highway, and the other, the respondent John Weiss, who entered the highway on the left-hand side of Mrs. Whisler. The automobiles collided on Mrs. Whisler's right side of Dexter avenue, the arterial highway, and about at the center line of Roy street, which intersected the arterial. The collision occurred in the daytime when the weather and visibility were clear. Without any contradiction, it may be stated at the outset that these two automobiles were simultaneously approaching a given point in the intersection, and that Mrs. Whisler, because of her position on the respondent's right and for the further reason that she was proceeding upon an arterial highway, was the favored driver.

The witness Fahey was a fellow employee and close personal friend of the respondents Weiss. They worked at the Century Brewery in Seattle. Fahey was driving to Weiss's home and was following their automobile on Roy street when the collision occurred. He prepared a sketch of the intersection which is reproduced as a part of this opinion. His testimony in this connection is as follows:

"Q. Did you thereafter and at my request make a sketch of that intersection? A. I believe the following morning. Sketch marked: Defendants' Exhibit 17 for identification. Q. I will show you Defendants' Exhibit 17 for identification, and I will ask you if that is the sketch which you prepared yourself of the scene of the accident? A. Yes. Q. Will you then point out to the Court the points of the sketch?"

Witness Ervin D. Potter, a patrolman for the Seattle police department, called by appellant Whisler, testified as follows:

"Q. I wish you would explain to the Court what investigation you made and what you found with respect to skid marks of each car. A. Well, of Mr. Weiss' car there was one pace of forward skid marks, braking skid marks, and four feet of side skid, that is, would be skidding south; and Mrs. Whisler's car there wasfourteen paces of side skid after she was — after the impact tothe resting point of the car. Q. That is, the skid mark offourteen paces to the Whisler car was sideways, was it? A.Southwest, the side skid. Q. And the forward skid mark of the Weiss car indicated one foot of braking — I mean one pace? A. One pace or about three feet. Q. I suppose about forty-two side skid of the other car? A. Yes." (Italics mine.)

Witness E.E. Chivers, an associate patrolman of Mr. Potter, also called by the appellant, testified to the same material facts. It should be observed that these witnesses are trained in studying the physical facts of automobile accidents, and, which is even more important in this case when one is confronted with the testimony of the witness Fahey, these police officers were wholly disinterested.

No photographs of respondent Weiss's automobile were offered in evidence and none are in the record before us. Defendant's exhibit No. 15 is an itemized statement of the Anderson Buick Company, which repaired respondent's automobile after the collision. The first item on this statement is a new hood. Various other items following are: new hood ornament, removal and repair of the radiator core, new windshield glass, new right-front fender, "new

[EDITORS' NOTE: SKETCH IS ELECTRONICALLY NON-TRANSFERRABLE.]

radiator grill complete," and "straighten front bumper complete." Other items requiring repair were the generator, the fan belt, the fuel pump, the fuel lines, the steering system, and the left-front headlight was replaced.

Photographs of appellants' automobile, taken immediately after the collision, show no damage whatsoever to the front end, the headlight and spotlight lenses are intact, the two front fenders, radiator grill, and hood are without damage, but the left-hand center side and door of the automobile were smashed in in such manner as to indicate a violent impact from another automobile. No other conclusion is possible under these undisputed physical facts.

As indicated by the plat of the intersection, and the relative positions of the automobiles in their respective courses, the collision occurred on appellant Mrs. Whisler's own, or right-hand, side of the arterial highway. The side skid marks of forty-two feet start approximately in the center of appellant's right-hand section of Dexter avenue. These side skid marks likewise exclude every conclusion save the obvious one that appellant's automobile was struck violently by respondent's automobile and pushed sideways, a distance of some forty-two feet, to the right-hand curb on Dexter avenue. In the light of these physical facts, the testimony of the respondent and his fellow employee and friend, Mr. Fahey, that the appellant's automobile struck the respondent's automobile somewhere to the left of the center line of Dexter avenue, is neither tenable nor accurate.

The trial court and the majority resolve this case on the theory that the respondent was negligent, but that appellant swerved momentarily from her direct course southerly on Dexter avenue, thus giving the respondent the impression that she intended to turn left in the intersection and proceed on Roy street. As stated, the physical facts of this collision do not bear out this theory. Appellant Mildred Whisler's testimony, when considered in the light of the factual situation revealed by the damage sustained to her automobile and by the skid marks on the pavement as shown by witness Fahey's plat and the traffic policemen's testimony, is, by far, more reasonable than that of the respondent Weiss and his fellow employee Fahey. It was as follows:

"Q. Now, I wish you would tell the Court in your own language just what happened, say, for a distance of about a block before that accident happened, at the time it happened, and afterwards, so far as you know. Just tell the Court how this thing happened. A. Well, I was driving down Dexter Avenue approximately at twenty-five miles an hour, and I looked up and saw this blinker light in the intersection and knew there was an intersection, so I slowed up. I looked, and there was no cars coming or nothing, and so I proceeded on, but I had slowed up. Q. How fast were you going at any time in the intersection of Dexter and Roy Street? A. Oh, approximately eighteen miles an hour in the intersection. Q. At the intersection? A. Yes, sir. Q. Did you see this car before it struck you? A. Just had a glance of it. Q. How far would you say it was away from you before it hit you that you saw it? How far away was it when you saw it before it hit you? A. Approximately fifteen feet. Q. What did you do then? A. Well, I knew he was going to hit me and Itried to get out of his way. Q. Did you go straight ahead,sideways, or what? A. Straight ahead, sir. Q. Where was yourcar at the time it was struck with respect to the intersection? A. I was in the middle of the intersection. Q. Were you onyour own side of the street? A. Yes, sir. Q. Had the wheels of your car passed the center line of the street? MR. CHADWICK: Let the witness answer. That is leading. Q. What part of your car would be at the center line of the street, the front end, the back end, or the middle, or what? A. Well, I was almost in the center. The front end was almost in the middle of the intersection. Q. What part of the car? That car is about twenty feet long. What part of the car would you say would be at the center line? A. The middle of the car. Q. The middle of the car; where would that be with respect to the seat you were sitting in? A. It would be right with me. Q. Right where you were sitting? A. Yes, sir." (Italics mine.)

In view of the terrific force with which appellant's automobile was struck by respondent's, it is difficult to believe that respondent stopped at the entrance to the arterial highway. Whether he stopped, slowed down, or maintained his speed, there is no escape from the conclusion that he caved in the left-hand side of appellant's automobile and pushed it sideways forty-two feet across the intersection to the curb.

The statute measures the respondent's responsibility when entering an arterial highway. It is Rem. Rev. Stat., Vol. 7A, § 6360-90, and provides as follows:

"The operator of any vehicle shall stop as required by law at the entrance to any intersection with any arterial public highway, and having stopped shall look out for and give right ofway to any vehicles upon such arterial highway simultaneouslyapproaching a given point within the intersection, whether or notsuch vehicle first reach and enter the intersection." (Italics mine.)

A very analogous factual situation was presented in the case ofMiller v. Asbury, 13 Wash. 2d 533, 538, 125 P.2d 652. The following pertinent language was used in the opinion in that case:

"It may well be doubted, considering the matter from the common-law point of view only, whether reasonable minds could arrive at the conclusion that one who took such a chance was acting with due regard for his own safety. But it is unnecessary to pass upon the common-law aspect of the matter, since Miller was so clearly guilty of negligence per se, first, in failing to stop at the entrance to the intersection, and, then, in failing to give the right of way to the car rapidly approaching on the arterial highway, which he might easily have done at any time while traversing the thirty feet between the stop sign and the traveled portion of the highway.

"The purpose of the statute is to prevent just such accidents as that described by the evidence in this case. Arterial highways carry fast moving traffic. Numerous accidents will occur unless such highways are entered with care. The legislative policy and purpose are not to permit an operator of a vehicle approaching an arterial, as distinguished from an ordinary, highway, to speculate as to whether he may safely drive into it without stopping. It provides that he shall stop and make certain preliminary observations. The statute is mandatory. It says he`shall stop as required by law.' An interval is thus forced upon him, a period during which he is entirely free from the task of operating his own vehicle, and he is told exactly what he must do during that interval, and in equally mandatory language —`and having stopped shall look out for and give right of way toany vehicles upon such arterial. . . .' (Italics ours.)

"Furthermore, the statute, by requiring a stop at the entrance to the intersection, insures the vehicle's arrival at the traveled portion of the arterial at such a slow rate of speed that, even if its operator has for some reason previously failed to detect a car approaching on the arterial, he can still obey the other mandate of the statute and `give right of way.' In brief, the mandatory commands of the statute to the operator of a vehicle about to enter an arterial are: Stop and give your entire attention to looking for traffic on the arterial, and if you see a vehicle thereon about to cross the same point which you are about to cross, give it the right of way. If these commands of the statute are obeyed, it is very difficult to imagine how an accident of the kind with which we are now dealing can occur, especially at an unobstructed crossing."

In the later case of Mathers v. Stephens, 22 Wash. 2d 364,156 P.2d 227, at p. 370, the court said:

"There are many cases in which we have held, as a matter of law, that the negligence of one violating a statute or ordinance was a proximate cause of an accident, but in those cases the conduct of the party constituting the violation was so clearly a cause thereof that by no process of reasoning could it be said the accident would not have happened if it were not for such conduct. In this case the effect of the statutory negligence of appellant is debatable and open to differences of opinion.

"The factual situation we have outlined warranted the jury finding the respondent was negligent in failing to stop his automobile before entering the intersection and also in crossing the highway where the appellant's automobile was so close to the intersection and its speed was such that he could not do so safely.

"The whole situation is well summed up in what we said in Reedv. Tacoma R. P. Co., 110 Wash. 334, 188 P. 409.

"`In this case, even assuming prior negligence as charged upon the appellant's daughter, we think it is for the jury to say which of the parties was guilty of that negligence — the last proximate, efficient cause — but for which the accident would not have happened.'"

For the foregoing reasons, I dissent from the opinion filed by the majority and conclude that the appellants Whisler are entitled to recover from the respondent Weiss adequate damages for the personal injuries, and expense incident thereto, which Mrs. Whisler sustained, and that the marital community consisting of the Whislers, husband and wife, is likewise entitled to recover additional damages sustained by them.

The observations contained herein are in full accordance with the views expressed by Judge Simpson in the very recent case ofAngelo v. Lawson, ante, p. 198, 173 P.2d 124.

MALLERY, J., concurs with CONNELLY, J.