Emma Jane Miller brought this action against Charles C. Cody and Mrs. Cody to recover for personal injuries and property damage sustained in an automobile accident. The accident occurred at a "T" type street intersection in Yakima, Washington, on February 28, 1949, when a vehicle driven by Mr. Cody collided with the rear of a car driven by Mrs. Miller.
The case was tried to a jury. At the conclusion of the trial, plaintiff moved that the jury be directed to return a verdict for plaintiff, the amount of damages to be fixed by the jury. The motion was denied. This same request was made in plaintiff's proposed instruction No. 8, and plaintiff duly excepted to the failure to give this instruction.
The jury returned a verdict for defendants. The trial court thereafter denied plaintiff's motion for judgment notwithstanding the verdict, but granted her motion for a new trial, except as to property damage, the claim for which had been withdrawn. Defendants appeal. Mr. Cody will be referred to as if he were the only defendant and appellant.
Superior Court Rule 16, 34A Wn. (2d) 117, requires the trial court, in granting a motion for a new trial, to give definite reasons of law and fact for so doing. In complying with this rule in the instant case, the trial court did not specifically refer to any of the nine causes for which a new trial may be granted, as set out in Rule 16. Instead, the court gave its reasons as follows:
"On the ground that from the testimony as a matter of law the defendants were negligent in failing to keep a proper lookout and in failing to follow at such a distance and speed that an emergency stop could safely be made, and on the further ground that there was no evidence from which the jury could determine as to whether or not the plaintiff was guilty of contributory negligence and that there was uncontroverted evidence of some physical injury suffered by the plaintiff and that it was therefore error to submit the issue of negligence to the jury."
It will be observed that the reasons thus given cover the question of appellant's negligence, respondent's contributory negligence, and damages. We will first consider the correctness
South Front street, in the city of Yakima, runs north and south and is intersected at right angles on its east side by Chestnut street. At this intersection, neither street is an arterial and there are no traffic signals. There are buildings, flush with the sidewalk, on the northeast and southeast corners of the intersection. These buildings tend to obstruct the view of drivers approaching the intersection from the east on Chestnut street. The accident occurred shortly after five o'clock p.m. It was then daylight, visibility was good, and the streets were dry.
Respondent, traveling west on Chestnut street, approached the intersection, intending to make a left-hand turn and travel south on South Front street. There was traffic on South Front street at the time, and so respondent brought her vehicle to a stop about even with the east side of the north-south crosswalk. A few seconds later appellant, also traveling west on Chestnut, approached respondent's vehicle from the rear, having the similar intention of making a left-hand turn onto South Front street. When appellant first noticed respondent's car, it was stopped at the intersection.
Mrs. Miller and Mr. Cody were the only witnesses to the collision. The facts so far related are not in dispute, but the witnesses disagree as to what then transpired. Mrs. Miller testified that, after she came to a stop as described above, Cody's vehicle struck her car from the rear, causing the alleged personal injuries and property damage. We disregard her testimony, however, and accept Cody's version of how the accident occurred, since the jury verdict was in his favor.
Cody testified that he brought his car to a stop about six feet behind Mrs. Miller's vehicle. After a short space of time, Mrs. Miller proceeded forward at a slow pace, apparently observing the traffic on South Front street. After about twelve feet had opened up between the two cars, Cody proceeded forward, traveling at a speed of from four to six
On the question of respondent's contributory negligence, it will be noted that the trial court did not specifically hold that she was innocent of contributory negligence as a matter of law. What the court stated is that there was no evidence from which the jury could determine "as to whether or not" respondent was guilty of contributory negligence. But, since the burden of proving contributory negligence rests with
The testimony which Cody did give, on the other hand, tended to negative his claim that respondent was contributorily negligent. He testified that there was cross-traffic on South Front street, that Mrs. Miller proceeded forward at a slow pace, "apparently observing" such traffic, and that she brought her car to a stop the second time before actually entering the street intersection.
In view of the foregoing, it is our opinion that the trial court did not err in holding, as a matter of law, that appellant had failed to prove contributory negligence.
We are of the opinion, after reviewing the testimony, that there was substantial evidence of this character.
The order is affirmed.
SCHWELLENBACH, C.J., HILL, FINLEY, and OLSON, JJ., concur.