This is an automobile collision case, the accident having occurred at a street intersection in the city of Seattle. The case was tried to a jury, which rendered a verdict in plaintiff's favor for $5,285. From a judgment on the verdict, the defendants have appealed.
It appears that the respondent was driving south on Boren avenue, approaching Pike street from the north. As he reached the north curb line of Pike street, he slowed down to a speed of three or four miles per hour, *Page 564 looked to his right down Pike street and saw two automobiles approaching on Pike street, but still west of the alley which bisects the block, and distant from the intersection, as the jury had a right to believe, as much as one hundred and ninety feet. These cars were so far away, and approaching so nearly head-on, that the jury could well have found that the respondent did not and could not estimate their speed with any degree of accuracy. Respondent glanced in the other direction to assure himself that no other traffic was approaching, shifted into second gear and proceeded to cross the intersection, speeding up so that he gained a speed of twelve to fourteen miles per hour by the time of the impact.
As he proceeded, and after his momentary glance to the left, he again looked to the right and found the appellants' car almost in the act of striking him, and so near that, almost instantly, and before he could act in any way, the collision occurred. While there is varying testimony as to the speed at which appellants' car approached, it does not seem to be seriously contended that its speed was not greatly excessive or far greater than the lawful rate, and the jury was privileged to find that appellants' car continued from the point where first seen at an excessive rate of speed, undiminished up to the instant of the impact.
Appellants' first contention is that the trial court erred in denying their motion for dismissal at the close of the testimony, based upon the showing of what is claimed to be contributory negligence on the part of the respondent in failing to accord the right of way to appellants' car approaching upon his right, in exceeding the speed limit and in not keeping an adequate lookout for cars approaching on his right; but, under the record here, none of these questions can be decided as a matter of law. The evidence as to all of them was so *Page 565 far conflicting and susceptible of different interpretations and inferences as to make these questions all questions for the jury.
[1] Appellant next assigns error upon the giving and refusal of instructions and as we understand the points raised and the argument presented these may all be resolved into a single question. The court gave an instruction as follows:
"You are instructed that two automobiles are `simultaneously approaching a given point within a street intersection,' when, measuring from a given point within the intersection, they are at such a distance away from said point, and traveling at such a speed within the speed limits prescribed by law, that, continuing at said speed and without varying their course, they will necessarily collide. Under such circumstances, the law provides that the automobile on the left must yield the right of way to the car approaching from the right in order to avoid a collision. But, if the automobile on the left is proceeding at a lawful rate of speed and the automobile on the right is exceeding the speed limit, that is, traveling at a rate of speed in excess of 25 miles per hour, between intersections and in excess of 15 miles per hour, after reaching the intersection, then the automobile on the right is not `simultaneously approaching a given point within the intersection' as that term is used in the law.
"Therefore, if, in this case, you find from a fair preponderance of the evidence that the plaintiff was approaching a point within the intersection at a lawful rate of speed, that the defendants' automobile was at the same time approaching the same point, and, by reason of the fact that it was being driven at an unlawful rate of speed, it would, if driven in an unvarying course, necessarily collide within the intersection with the automobile driven by the plaintiff, then the two automobiles were not `simultaneously approaching a given point.'
"In other words, if you find by a fair preponderance of the evidence that, at the time the plaintiff started to cross said intersection, he was traveling at a lawful *Page 566 rate of speed; and if you further find that the defendants' automobile, if driven at a lawful rate of speed, was sufficiently far away to enable plaintiff's automobile to cross the intersection safely, and plaintiff did not know or could not readily ascertain that defendants' automobile was traveling at an unlawful rate of speed, then the plaintiff would not be guilty of contributory negligence in so crossing or attempting to cross said intersection, because under such circumstances there would be no duty to yield the statutory right of ways."
To this instruction appellants objected and excepted, and they proposed certain instructions giving what they contend is the law on the subject, which were by the court refused.
There seems to be some confusion in our cases upon this subject, created or at least augmented by the recently decided case of Garrett v. Byerly, 155 Wash. 351, 284 P. 343, in which it was said:
"The statute does not undertake to define the conditions that will constitute a simultaneous approach, but since it prescribes the speed at which vehicles may be driven prior to and at the time of crossing intersecting highways, and prescribes the side of the road on which the vehicles must be driven when so approaching and crossing, it would seem clear that it contemplates a situation where the drivers of the vehicles are driving on the prescribed side of the road and within the prescribed speed limit. Stated conversely, vehicles are not simultaneously approaching a given point within the meaning of the statute when one or both are being driven in violation of the statutory regulations."
While that case was rightly decided, a majority now think the language quoted to be too broad and, if taken literally and applied indiscriminately, that it will lead to improper results.
The statute, Remington's 1927 Sup., § 6362-41, subd. 14, reads: *Page 567
"Drivers, when approaching public highway intersections, shall look out for and give right of way to vehicles on their right, simultaneously approaching a given point within the intersection, and whether such vehicles first enter and reach the intersection or not: Provided, this paragraph shall not apply to drivers on arterial highways."
This provision is only a part of the rules of the road, and the various other statutory elements must, so far as applicable, be read into it, and, by so doing, it seems to us that an instruction upon the subject should embody all of the following elements:
(1) All rights of way are relative, and the duty to avoid accidents or collisions at street intersections rests upon both drivers.
(2) The primary duty of avoiding such accidents rests upon the driver on the left, which duty he must perform with reasonable regard to the maintenance of a fair margin of safety at all times.
(3) If two cars collide within the intersection, then they were simultaneously approaching a given point within the intersection, within the meaning of the statute, unless —
(4) The driver on the left assumes and meets the burden of producing evidence which will carry to the jury the question of fact as to whether or no the favored driver on the right so wrongfully, negligently, or unlawfully operated his car as would deceive a reasonably prudent driver on the left and warrant him in going forward upon the assumption that he had the right to proceed.
This exception, or limitation, is perhaps best illustrated, by the familiar case, so often presented here (this particular case being a fair sample), of the driver on the left, as he approaches and is about to enter the intersection, seeing upon his right a car approaching, but at such a distance that, if driven within the lawful *Page 568 rate of speed, it cannot reach the intersection until he has safely passed. It is a well known fact that one looking to his right at an approaching car under such circumstances sees it coming toward him practically head-on, and oftentimes cannot judge accurately of its speed. The necessity for the constant moving of traffic and that the intersection be not blocked in either direction requires the driver on the left to decide almost instantly whether to proceed or stop. If, acting as a reasonably prudent man, he makes such observations as he can, and there is nothing to warn him that the car approaching on the right is so far exceeding the speed limit as to endanger his progress, he must necessarily proceed in order to facilitate traffic. But if, on the other hand, there is anything in the situation which would warn a reasonably prudent driver that the car approaching on the right is out of control, or is so far exceeding the speed limit as to be actually within striking distance, then it is the duty of the driver on the left, notwithstanding the negligence and the violation of the law by the driver on the right, to yield the right of way in the interest of safety to all concerned.
Appellants and amicus curiae contend for a stricter rule, placing the entire burden upon the driver on the left, but such a rule is, we fear, entirely impracticable, because, at busy intersections, the driver on the left might wait indefinitely, blocking his street entirely, and giving successive on-coming drivers on his right unlimited use of the intersection to the entire exclusion of opposing traffic.
The rule we have attempted to lay down is, we think, in harmony with all of our cases on the subject except the Garrett case, supra, and, so far as that case conflicts, it is now expressly overruled.
The last part of the instruction quoted leans somewhat toward curing the vice of what precedes it, but *Page 569 in a closely contested case the jury would be inclined to follow the erroneous mandatory directions of the instruction, rather than the somewhat parenthetical modification thereof which follows, and we therefore feel that appellant is entitled to a new trial in which the proper rule of law will be given to the jury.
The judgment is reversed with instructions to grant a new trial.
MITCHELL, C.J., MAIN, PARKER, BEALS, FRENCH, and MILLARD, JJ., concur.