Collins v. Barmon , 145 Wash. 383 ( 1927 )

Appellant, the husband — who will hereafter be spoken of in this case as if the only appellant — while driving in his Buick automobile northerly on the Pacific highway between the towns of Silvana and Marysville, on November 4, 1924, at about 2:00 o'clock p.m., came into collision with the car of respondent, and much damage was done. The cars collided at or near a curve known as "Dead Man's Curve," which makes an almost complete right angle turn.

Appellant was driving on the right hand side of the highway, as he and his witnesses say, and on the curve would have the inside or short arc across the curve. Respondent was driving southerly and would have the outside of the curve; but appellant and his witnesses declare that respondent was driving on their side of the pavement, except just at the time of the collision, when he attempted to turn to the right. Appellant's version of the manner in which the collision occurred was supported by the testimony of two witnesses who were in his car with him, and we must confess would seem the most reasonable and probable, inasmuch as drivers generally attempt to drive across the short side of curves. In this case, it was the proper side for appellant.

Be that as it may, the evidence is in sharp conflict, and that of respondent, together with that of a witness who testified to having arrived at the scene of the accident an hour and a half later, and found skid marks on the pavement showing that the car of respondent had been shoved over for about eighteen inches on the pavement, then across on the gravel at the side of the pavement for a short distance, until the car was shoved up nearly to or against three telephone poles standing in a group at the curve. The car of appellant, after having been struck, slid on the slippery pavement, turned around and came to rest a short distance behind the car of respondent, facing in the same direction, that is, in the opposite direction to that in which it had been traveling.

Simultaneous suits were begun by each of the parties; but when this action was begun by respondent for $1,573.50 as damage to his automobile, appellent cross-complained for $1,086.72 for damages to his car, and $1,000 because of personal injuries. The repair bill proven by respondent for his car was the sum of $663.35, and that was the amount of the jury's verdict in his favor. There are other details in the evidence as to the actions of the parties at, immediately before, and immediately after the collision, all of which are in conflict, and all of which were resolved by the jury in favor of respondent. The entire record has been read.

[1] Appellant insists that the trial court should have granted his motion for nonsuit at the close of respondent's evidence; because, it is contended, respondent testified that he could see the car of appellant for three hundred yards, saw that he could not make the curve, knew they would crash if he attempted to go around, and yet he drew to the right side of the road in the very path of the oncoming car, swinging around the curve, taking his hands off the steering wheel, burying his head in his hands and making no effort to get out of the way; that, under this testimony, respondent stopped in the only spot where he could have been hit.

On the trial, the evidence of respondent was to the effect that, when he saw the car of appellant coming so rapidly toward him, and knew that it could not miss hitting him if it attempted to take the curve at the speed at which it was going, he drew to his own side of the road, leaving his car with the left-hand wheels about two feet on the paved way and the rest of his car off the paved way, stopped his car and then threw his hands up over his face to prevent being struck by broken glass.

The jury had the right to believe his testimony that that was the way in which the accident happened, and it was wholly within their province so to do. The motion for nonsuit was properly refused, and for the same reason the motion for judgment n.o.v., was properly denied. Donaldson v. Great Northern R. Co.,89 Wash. 161, 154 P. 133; Jensen v. Lawrence, 94 Wash. 148,162 P. 40, Ann. Cas. 1917E 133; Chapman v. Rose, 135 Wash. 248,237 P. 708.

[2] It is contended also that the court erred in permitting a witness to testify as to the purported skid marks upon the road when he did not arrive there until about an hour and thirty minutes later, on a rainy day, when the pavement was wet and slippery, on a road that was proven to be a main arterial highway, admittedly known by everybody to be used by vehicles of every description going in both directions.

The evidence of the witness as to the marks of the wheels of respondent's car being shoved from the place where it was standing on the pavement to the place where it came to rest after the accident, even though the witness did not see them for an hour and a half thereafter, was in all events, probable. That kind of evidence would probably still be in existence from the time of the accident until the time of the arrival of the witness. The other evidence as to the skid marks of the other car, while apparently somewhat improbable, nevertheless was not incompetent, but its weight and credibility were for the jury. This court accepted the evidence which had been admitted by the trial court as to skid marks testified to by a witness who arrived forty minutes after the accident. Hiscock v. Phinney,81 Wash. 117, 142 P. 461, Ann. Cas. 1916E 1044. We there said:

"The point of actual contact, as well as the question whether the respondent's car made the skid marks to which the witnesses testify, was a question for the jury."

Appellant also complains of the exclusion of testimony by the trial court upon cross-examination of respondent by counsel for appellant, which we have examined and find no merit in the contention of appellant.

[3] Appellant vigorously complains of the acceptance of a juror named McClure, challenged for cause by appellant, and the challenge denied. Appellant exercised his three peremptory challenges against other jurors, and did not exercise it against McClure. McClure, on voir dire, testified that he was acquainted with Mr. Schwellenbach, one of counsel for respondent, and that they had met sometimes in connection with American Legion work, and also in a social way. He testified that he did not think the acquaintance would influence him in any wise in any judgment he might reach on the facts in the case. On being asked by counsel for appellant whether he felt that, consciously or unconsciously, his acquaintance with Mr. Schwellenbach might influence his verdict respecting questions of fact, the juryman answered that it would not consciously, but might unconsciously; that he had never heard of the case before; that Schwellenbach had never represented him in any professional manner; and that his acquaintance with Schwellenbach would not permit him to be overcome by his eloquence in the argument to the jury, although he admitted a little further on that he could see a possibility of being unconsciously influenced; that he preferred not to serve on the case.

Upon the challenge, although it was not resisted by Mr. Schwellenbach, the court denied it because he said it was immaterial what jurors did or did not prefer; that it was a juror's duty to try a case whether he liked or disliked it; and that the court was not concerned with unconscious things. Thevoir dire examinations of this juror and all other jurors have been read, and we are satisfied that the juror desired to be fair and impartial. His position was that of assistant superintendent of schools in Seattle. He was undoubtedly a man of fine mental and moral qualities, and he seemed a very honest and candid man. While he was ready to admit that he might be unconsciously biased in favor of Schwellenbach's cause, such mental attitude on the part of such a juror would probably cause him to endeavor the harder not to permit any bias or prejudice in favor of that side.

[4] Upon the motion for a new trial, an affidavit was filed by one of the jurors who served on the case, to the effect that McClure was elected foreman of the jury, and that he urged that a verdict be given plaintiff in the amount sued for, or fifteen hundred dollars.

The affidavit of the juror is so clearly controlled by our rule that jurors will not be permitted to impeach their own verdicts that it is not necessary to cite authorities.

The verdict of the jury was unanimous. While at first blush, a majority of the judges were inclined to think that appellant had been denied a fair trial by the denial of his challenge of juror McClure, after carefully studying the record, we are unable now to so decide.

We believe that appellant had a fair trial, and that the verdict must be, and is, affirmed.

MACKINTOSH, C.J., FULLERTON, MAIN, and ASKREN, JJ., concur.