Lloyd v. Calhoun , 78 Wash. 438 ( 1914 )

Morris, J.

(dissenting) — I cannot concur in the majority opinion. No amount of argument can change the fact that it was the duty of both parties to keep to the right to avoid a collision, or that if respondent had obeyed this law of the road, or not obeyed it but kept on his course, no collision would have occurred. The proximate cause of the collision was respondent’s turning his car to the left and colliding with appellant when appellant was where he should have been. His negligence in this regard — for it has been held negligence per se not to follow the law of the road — is excused by the jury and concurred in by the majority because of his belief that appellant did not intend to turn out but evidently purposed to drive his machine directly upon him, a belief that subsequent events proved was not well founded. Yet he is permitted to recover because of his mistaken belief and his wrongful act in driving his machine against that of appellant when appellant was where the law required him to be and doing all that he was required to do to avoid a collision. One may well inquire, if, as respondent says, he turned to the left to avoid a collision with appellant, why he did not turn to the right on the “smooth prairie” spoken of in the majority opinion, where there was no obstacle to prevent the safe driving of his machine. His excuse for not doing so was the telephone poles; but these poles were 126 feet apart and there was from 76 to 86 feet, according to the figures used by the majority, between respondent and the nearest pole when he turned to the left. This, it seems to me, was ample distance within which to avoid a telephone pole on the smooth prairie. It is true that the verdict of a jury is conclusive upon contested facts, but I find no conflict in any of these determinative facts. The only conflict is by way of conclusion based upon facts not conflicting. While we cannot disturb a verdict based upon conflicting facts, we ought not to permit one based upon facts not conflicting to stand, when it violates both the facts and the law. I therefore dissent.

Crow, C. J., concurs with Morris, J.