Blake, J.
Plaintiff’s intestate was killed as the result of a collision between a car which she was driving and one driven by defendant Herder. The colli
sion occurred on the Olympic highway, about two miles east of Port Angeles, at or near the point where a highway called Baker street enters the Olympic highway from the north.
The Olympic highway is an arterial highway extending east and west. Baker street is an unpaved non-arterial highway, and does not extend south of the Olympic highway. We shall, however, refer to the juncture of the two highways as “the intersection.” There was a stop sign on the west side of Baker street, thirty feet north of the north line of the Olympic highway. At the northeast corner of the intersection, there was a high embankment. Because of this embankment, it was impossible for one approaching on Baker street to see any considerable distance to the east until the front of Ms car was within three or four feet of the pavement on the Olympic highway.
The collision occurred at or just east of the intersection. It is defendants’ contention that the collision occurred within the intersection. It is plaintiff’s contention that the collision occurred east of the intersection, after Mrs. Karp had made the turn from Baker street onto the Olympic highway, and after her car was headed east and was wholly on the south side of the latter highway.
The cause was tried to a jury, which returned a verdict in favor of the plaintiff. Prom judgment on the verdict, defendants appeal.
The errors assigned by appellants may be discussed under three groups: (1) Denial by the court of their challenge to the sufficiency of the evidence at the close of respondent’s case; denial of their motion for a directed verdict, or, in the alternative, for judgment of dismissal at the close of all the evidence; denial of their motion for judgment notwithstanding the ver-
diet; (2) denial of their motion for new trial; and (3) error in the giving of two instructions.
I. In considering the first group of errors, it hardly seems necessary to reiterate that we are hound to view them in the aspect of the evidence most favorable to respondent. There was ample evidence to warrant the jury in finding that Herder was driving at an excessive rate of speed — sixty miles per hour. As to the point of collision and position of the cars at the time of collision, there was the testimony of two witnesses who professed to see it. One, Eobertson, testified on behalf of respondent; the other, Hoare, testified on behalf of appellants.
Eobertson testified that he was driving east on the Olympic highway; that, when he first observed Mrs. Karp’s car, it was about one hundred yards ahead of him, also going east; that her car was wholly on the south side (her right side) of the center line of the Olympic highway; that Herder, coming from the east, ran head-on into Mrs. Karp’s car; that, when he (Eobertson) arrived at the place of collision, he found Mrs. Karp lying on the pavement on the south side of the Olympic highway at a point some fifteen feet east of the east line of Baker street; that she was bleeding profusely; that debris from the wrecked cars was scattered along the south side of the Olympic highway; that Herder’s car came to rest upside down off to the south of the highway at a point within the lines of Baker street if it extended south of the Olympic highway; that the Karp car came to rest headed north — its rear wheels still on the pavement, with its front end headed into the east side of Baker street. Eobertson’s testimony was corroborated in several respects by other witnesses. One testified to finding blood stains on the pavement at about the point where Eobertson testified he found Mrs. Karp lying. Two
corroborated him as to debris and wreckage lying on the south side of the Olympic highway.
Now, if all this evidence is to be believed (and the jury did believe it), this was not an intersection collision at all. According to this evidence, Mrs. Karp had gotten out of the intersection and had become a traveler on the Olympic highway, occupying only that portion of the highway which, under the law, she was entitled to use. "While in this position, she was struck by Herder, who was on what, for him, was the wrong side of the road. Accepting this version of the collision, it seems to us clear that Herder was negligent and Mrs. Karp was not guilty of contributory negligence.
Appellants’ version of the collision all tended to show that it occurred in the intersection, as Mrs. Karp was entering the Olympic highway from Baker street. Appellants contend that the physical facts support their version. The difficulty with this contention is that there is controversy over the physical facts, namely, blood marks on the pavement, the positions of the two cars when they came to rest, and the places where wreckage from the cars was cast. While it would appear from the photographs in evidence that the right front end of Herder’s car struck the left front end of Mrs. Karp’s, and that there was blood on the pavement to the 'east of the intersection (thus tending to support appellants’ version of the collision), we cannot say that the physical facts are such as are determinative of the questions of negligence and contributory negligence as a matter of law.
Lewis v. Spokane,
124 Wash. 684, 215 Pac. 36.
II. Appellants contend that the verdict was against the weight of the evidence, and consequently their motion for new trial should have been granted. The trial court, in passing on the motion for new trial,
remarked that, had it been tbe trier of the facts, it would have reached a different conclusion than did the jury. It does not follow, however, that the verdict is against the weight of the evidence, or that the trial court abused its discretion in denying the motion for new trial.
Ritter v. Seattle,
82 Wash. 325, 144 Pac. 61.
As we have seen, the verdict was grounded upon substantial evidence. In such case, we cannot say the trial court abused its discretion in denying a motion for new trial, even though it might seem to us the weight of the evidence was against the verdict.
III. The court instructed the jury to the effect that it was the duty of Herder to keep his car “under such control so that he would not run into and collide with other vehicles on the highway.” Appellants assert this- instruction fixed a measure of duty on Herder with which it was impossible to comply. This argument is predicated wholly upon the theory that the collision occurred at the place and in the manner claimed by appellants. It seems to us too plain for argument that the instruction was proper upon respondent’s version of the collision.
Presenting appellants’ version of the collision, the court instructed the jury, among other things, that it was Mrs. Karp’s duty to yield the right of way to Herder. The court then added:
“The law presumes that at the time and place in question, and at this intersection, the deceased did yield the right of way to the defendant.
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Blake, J.
Plaintiff’s intestate was killed as the result of a collision between a car which she was driving and one driven by defendant Herder. The colli
sion occurred on the Olympic highway, about two miles east of Port Angeles, at or near the point where a highway called Baker street enters the Olympic highway from the north.
The Olympic highway is an arterial highway extending east and west. Baker street is an unpaved non-arterial highway, and does not extend south of the Olympic highway. We shall, however, refer to the juncture of the two highways as “the intersection.” There was a stop sign on the west side of Baker street, thirty feet north of the north line of the Olympic highway. At the northeast corner of the intersection, there was a high embankment. Because of this embankment, it was impossible for one approaching on Baker street to see any considerable distance to the east until the front of Ms car was within three or four feet of the pavement on the Olympic highway.
The collision occurred at or just east of the intersection. It is defendants’ contention that the collision occurred within the intersection. It is plaintiff’s contention that the collision occurred east of the intersection, after Mrs. Karp had made the turn from Baker street onto the Olympic highway, and after her car was headed east and was wholly on the south side of the latter highway.
The cause was tried to a jury, which returned a verdict in favor of the plaintiff. Prom judgment on the verdict, defendants appeal.
The errors assigned by appellants may be discussed under three groups: (1) Denial by the court of their challenge to the sufficiency of the evidence at the close of respondent’s case; denial of their motion for a directed verdict, or, in the alternative, for judgment of dismissal at the close of all the evidence; denial of their motion for judgment notwithstanding the ver-
diet; (2) denial of their motion for new trial; and (3) error in the giving of two instructions.
I. In considering the first group of errors, it hardly seems necessary to reiterate that we are hound to view them in the aspect of the evidence most favorable to respondent. There was ample evidence to warrant the jury in finding that Herder was driving at an excessive rate of speed — sixty miles per hour. As to the point of collision and position of the cars at the time of collision, there was the testimony of two witnesses who professed to see it. One, Eobertson, testified on behalf of respondent; the other, Hoare, testified on behalf of appellants.
Eobertson testified that he was driving east on the Olympic highway; that, when he first observed Mrs. Karp’s car, it was about one hundred yards ahead of him, also going east; that her car was wholly on the south side (her right side) of the center line of the Olympic highway; that Herder, coming from the east, ran head-on into Mrs. Karp’s car; that, when he (Eobertson) arrived at the place of collision, he found Mrs. Karp lying on the pavement on the south side of the Olympic highway at a point some fifteen feet east of the east line of Baker street; that she was bleeding profusely; that debris from the wrecked cars was scattered along the south side of the Olympic highway; that Herder’s car came to rest upside down off to the south of the highway at a point within the lines of Baker street if it extended south of the Olympic highway; that the Karp car came to rest headed north — its rear wheels still on the pavement, with its front end headed into the east side of Baker street. Eobertson’s testimony was corroborated in several respects by other witnesses. One testified to finding blood stains on the pavement at about the point where Eobertson testified he found Mrs. Karp lying. Two
corroborated him as to debris and wreckage lying on the south side of the Olympic highway.
Now, if all this evidence is to be believed (and the jury did believe it), this was not an intersection collision at all. According to this evidence, Mrs. Karp had gotten out of the intersection and had become a traveler on the Olympic highway, occupying only that portion of the highway which, under the law, she was entitled to use. "While in this position, she was struck by Herder, who was on what, for him, was the wrong side of the road. Accepting this version of the collision, it seems to us clear that Herder was negligent and Mrs. Karp was not guilty of contributory negligence.
Appellants’ version of the collision all tended to show that it occurred in the intersection, as Mrs. Karp was entering the Olympic highway from Baker street. Appellants contend that the physical facts support their version. The difficulty with this contention is that there is controversy over the physical facts, namely, blood marks on the pavement, the positions of the two cars when they came to rest, and the places where wreckage from the cars was cast. While it would appear from the photographs in evidence that the right front end of Herder’s car struck the left front end of Mrs. Karp’s, and that there was blood on the pavement to the 'east of the intersection (thus tending to support appellants’ version of the collision), we cannot say that the physical facts are such as are determinative of the questions of negligence and contributory negligence as a matter of law.
Lewis v. Spokane,
124 Wash. 684, 215 Pac. 36.
II. Appellants contend that the verdict was against the weight of the evidence, and consequently their motion for new trial should have been granted. The trial court, in passing on the motion for new trial,
remarked that, had it been tbe trier of the facts, it would have reached a different conclusion than did the jury. It does not follow, however, that the verdict is against the weight of the evidence, or that the trial court abused its discretion in denying the motion for new trial.
Ritter v. Seattle,
82 Wash. 325, 144 Pac. 61.
As we have seen, the verdict was grounded upon substantial evidence. In such case, we cannot say the trial court abused its discretion in denying a motion for new trial, even though it might seem to us the weight of the evidence was against the verdict.
III. The court instructed the jury to the effect that it was the duty of Herder to keep his car “under such control so that he would not run into and collide with other vehicles on the highway.” Appellants assert this- instruction fixed a measure of duty on Herder with which it was impossible to comply. This argument is predicated wholly upon the theory that the collision occurred at the place and in the manner claimed by appellants. It seems to us too plain for argument that the instruction was proper upon respondent’s version of the collision.
Presenting appellants’ version of the collision, the court instructed the jury, among other things, that it was Mrs. Karp’s duty to yield the right of way to Herder. The court then added:
“The law presumes that at the time and place in question, and at this intersection, the deceased did yield the right of way to the defendant. This, however, is merely a presumption and may be overcome by the evidence in this case to the contrary, if there is such evidence, but it continues as a presumption until it has been overcome by the evidence in the case. ’ ’
Appellants contend that error was committed in giving the quoted portion of the instruction, because there was positive testimony to the effect that Mrs. Karp did not stop before entering the Olympic high
way, and did not yield the right of way to Herder. The witness Hoare did testify to that effect.
In many jurisdictions the presumption of due care on the part of a deceased persons falls and loses its force completely upon the introduction of positive evidence to the contrary. Language may he found in many of our own cases from which it might be inferred that such is the rule in this jurisdiction, as, for example, in
Reinhart v. Oregon-Washington R. & N. Co.,
174 Wash. 320, 24 P. (2d) 615, where it said:
“The presumption of due care may be overcome by the direct testimony of disinterested witnesses, but it is not overcome by the testimony of interested witnesses, or from inferences that may be drawn from circumstantial facts.”
The rule contended for by appellants, however, does not prevail in all jurisdictions where contributory negligence is an affirmative defense, and the burden of proving it is on the defendant.
McGhee v. White,
66 Fed. 502;
Northern Pacific R. Co. v. Spike,
121 Fed. 44. In the latter case, decided by the eighth circuit court of appeals, it was said:
‘‘ The rule is well settled that where the accident results in instant death, as it did in this case, ‘the law, out of regard to the instinct of self-preservation, presumes the deceased was at the time in the exercise of due care, and this presumption is not overthrown by the mere fact of injury. The burden rests upon the defendant to rebut this presumption.’
Flynn v. Railroad Co.,
78 Mo. 195, 212, 47 Am. Rep. 99.
‘ ‘ The presumption arising from this natural instinct of self-preservation stands in the place of positive evidence, and is sufficient to warrant a recovery in the absence of countervailing testimony.
Johnson v. Railroad Co.,
20 N. Y. 65, 69, 75 Am. Dec. 375;
Oldfield v. N. Y. & Harlem R. Co.,
14 N. Y. 310;
Adams v. Iron Cliffs Co.
(Mich.) 44 N. W. 270, 18 Am. St. Rep. 441;
Railway Co. v. State,
29 Md. 420, 438, 96 Am. Rep. 545;
Railroad Co. v. Nowicki,
46 Ill. App. 566;
The City of
Naples,
32 U. S. App. 613, 16 C. C. A. 421, 69 Fed. 794;
Allen v. Willard,
57 Pa. 374;
Schum v. Railroad Co.,
107 Pa. 8, 52 Am. Rep. 468;
Cox v. R. Co.
(N. C.) 31 S. E. 848;
Cameron v. Railway Co.
(N. D.) 77 N. W. 1016. Nor is this presumption applied only when no one witnesses the accident. It has its application in all cases, and may be strong enough to overcome the testimony of an eyewitness.”
In the former case, the late Chief Justice Taft, then a member of the sixth circuit court of appeals, said:
“It is true that Bertha Caldwell is the only witness who testifies that she had in her sight Green Kennedy as he approached the crossing all the time until he was struck, and that she says that he saw the train, and attempted to get over before it, and whipped up his horses to do so. . . . The presumption of fact, and of law, too, would be against the existence of such wanton and reckless negligence, and the plaintiff was entitled to have the jury weigh the credibility of Miss Caldwell’s evidence in the light of the circumstances. If the jury found that Kennedy did not wantonly risk the danger, as Miss Caldwell testifies, then the only other explanation of the accident is that Kennedy did not look to see the train as it came. This is supported by Meux’s statement that he hallooed to Kennedy to look out when he saw the train. The question which we have to decide is whether, if he did not look, he was necessarily guilty of contributory negligence. We think that the circumstances were such as to make this question one for the jury. The case is governed by the decision of this court in
Railway Co. v. Farra
(handed down Feb. 5, 1895), 66 Fed. 496, and by the decision of the supreme court in
Railway Co. v. Ives,
144 U. S. 408, 12 Sup. Ct. 679.”
This court has recently recognized the rule thus stated in the case of
Smith v. Seattle,
178 Wash. 477, 35 P. (2d) 27, where it was said:
“There is a presumption that the deceased was in the exercise of due care, and this presumption is not overcome by the testimony of the motorman, which
was disputed by other witnesses, even though it be assumed that he was not an interested witness, or the testimony of the passenger upon the street car, which was likewise disputed. Contributory negligence is an affirmative defense, and the burden was upon the appellant to establish that by a preponderance of the evidence. The question of contributory negligence was one of fact for the jury, and not one of law for the court.”
And in the early case of
Steele v. Northern Pacific R. Co.,
21 Wash. 287, 57 Pac. 820, this court approved an instruction which, in principle at least, is in no essential respect different from the one given in the instant case. The instruction in that case was as follows:
“I instruct you that the plaintiff, Harry Steele, need not affirmatively prove that he stopped, looked, and listened. The presumption is that he did so, and the burden of proof that he did not stop, look, and listen is on the defendant railway company, and must be proved by a preponderance of the testimony on its part.”
Judge Dunbar, speaking for the court, said of it:
“The settled law of this state is to the effect that contributory negligence is a defense. But it is contended by the appellant that, where the facts are developed by the plaintiff himself which show contributory negligence, the defendant is entitled to avail itself of such facts, and consequently no presumption arises. We have just indicated that the facts developed by the plaintiff did not show contributory negligence, and therefore the criticism of the appellant is not warranted, so far as this instruction is concerned.”
The following’ of our cases are in harmony with the rule as thus stated:
Brandt v. Northern Pacific Ry. Co.,
105 Wash. 138, 177 Pac. 806, 181 Pac. 682;
Smith v. Inland Empire R. Co.,
114 Wash. 441, 195 Pac. 236;
Swanson v. Puget Sound Electric Railway,
118 Wash.
4, 202 Pac. 264;
Mattingley v. Oregon-Washington R. & N. Co.,
153 Wash. 514, 280 Pac. 46;
Peterson v. Great Northern R. Co.,
166 Wash. 538, 7 P. (2d) 963;
Eaton v. Hewitt,
171 Wash. 260, 17 P. (2d) 906.
The instant case is one where the rule stated is peculiarly applicable. There are some features of Hoare’s testimony which do not seem plausible, even in the printed record. He was an auto mechanic. He testified that he was trying out a car which he had just overhauled; that he was parked, heading north, on the east side of the Baker road, opposite the stop sign; that his motor was running; that he observed Mrs. Karp’s car approaching from the north and was waiting for her to pass before getting out to make some adjustments to his motor; that she was traveling five or six miles per hour as she passed him; that there was shrubbery in the back of her car, which caused him to turn in his seat and follow her with his eyes until the moment of collision; that she entered the Olympic highway without stopping.
Whether this story was true, partially true, or false, was for the jury, and not the court, to say. If taken at its face value, it, of course, was sufficient to overcome the presumption of due care on the part of Mrs. Karp. If not so accepted, it was not sufficient. The court properly left the question for the determination of the jury.
Judgment affirmed.
Millard, O. J., Maik, Mitchell, and Holcomb, JJ., concur.