45 Wn.2d 127, MIKE WENTZ, Respondent, v. T. E. CONNOLLY, INC., et al., Appellants
[No. 32617. Department One. Supreme Court August 5, 1954.]
MIKE WENTZ, Respondent, v. T. E. CONNOLLY, INC., et al.,
Appellants.«1»

Appellants do challenge seriously the sufficiency of the findings of fact to support the conclusions of law and the judgment. In essence, appellants argue that, even though their truck was on the left side of the road when it struck the respondent's car, this does not establish negligence or proximate cause. It is argued that respondent Wentz was negligent in failing to allow a fair margin of safety in crossing the junction at a time when he should have been aware of the oncoming truck. It is also contended that, by custom, trucks had the right of way over passenger cars, and that trucks carrying materials to the tunnel customarily traveled on the left side of the road preparatory to entering the left fork leading to the tunnel mouth.

Aug. 1954] WENTZ v. T. E. CONNOLLY, INC. 133

[2] These arguments raise the same questions as appellants' other main assignment of error relating to liability; namely, that the court erred in failing to make a finding of contributory negligence on the part of the respondent. In connection with the latter matter, the record shows that the trial court failed to make any specific finding on the issue of contributory negligence. However, the memorandum opinion of the court states that a preponderance of the evidence supported the proposition that, if respondent was negligent, such negligence had terminated at the time of the collision because respondent had successfully crossed the road and had straightened out his car on his own side of the road. In the memorandum opinion, the trial court further states that a preponderance of the evidence did not establish any negligence on the part of the respondent in crossing the junction when he did.

We said in Bowman v. Webster, 42 Wn. (2d) 129, 253 P. (2d) 934:

"Where the findings of fact are incomplete or defective in some particular so that a doubt exists as to the theory on which the case was decided, we are sometimes able to overcome the difficulty by referring to the oral or memorandum decision of the trial court. Kinnear v. Graham, supra [133 Washy 132, 233 Pac. 304]; Mertens v. Mertens, supra [38 Wn. (2d) 55, 227 P. (2d) 55]; Payne v. Vinecore, 40 Wn. (2d) 746, 246 P. (2d) 448. The conclusions of law occasionally can be made to serve a similar function."

We said in Squires v. McLaughlin, 44 Wn. (2d) 43, 265 P. (2d) 265:

"Finally, appellant argues that the trial court erred in failing to find and conclude that respondent was contributorily negligent. There was no specific finding or conclusion one way or the other as to this. However, a finding and conclusion that appellant was not contributorily negligent is implicit in the findings of fact and conclusions of law on the basis of which judgment was entered for respondent."

[3] Appellants contend that the evidence does clearly preponderate in favor of a finding of contributory negligence on the part of the respondent. We find no merit in the

134 WENTZ v. T. E. CONNOLLY, INC. [45 Wn. (2d)

argument that respondent Wentz was contributorily negligent in failing to allow a fair margin of safety in crossing the junction, in view of the undisputed evidence that he had completely crossed the junction and was on his right side of the road at the time of the collision.

[4, 5] Appellants' strongest argument is based on the fact that the road was a private one and that trucks had the right of way thereon. However, it is conceded that Wentz was an invitee on the private road and, therefore, T. E. Connolly, Inc., and its servants owed him the duty of using reasonable care to protect him from injury while thereon. Kinsman v. Barton & Company, 141 Wash. 311, 251 Pac. 563. It is further conceded that there is an established custom to drive on the right side of private roads even though public highway statutes do not there apply. Segerstrom v. Lawrence, 64 Wash. 245, 116 Pac. 876.

In Purdie v. Brunswick, 20 Wn. (2d) 292, 146 P. (2d) 809, we said:

"We have frequently declared and consistently followed the rule that, where a motor vehicle lawfully traveling upon its own right-hand side of the road is struck by another vehicle traveling upon its left-hand side of the highway, the burden is upon the operator of the vehicle on the left, or wrong; side of the thoroughfare to explain how the collision occurred without his negligence. [Citing cases.]"

[6] We believe this rule applies equally to public highways and private roadways, unless, in the latter case, it is shown that the usual custom of driving on the right side does not prevail. Appellant Scherer testified that he customarily cut to the left side of the road just before reaching the "Y," and that the other trucks did likewise. There was no evidence, however, that, with respect to the rights of other vehicles, trucks had a right of way to drive on the left side of the road at this point. There was no evidence that appellants had notified their employees of any necessity or custom for trucks to drive on the left. There was no evidence of a knowledge of a custom by other employees that in driving on their own right side of the road in the vicinity of the

Aug. 1954] WENTZ v. T. E. CONNOLLY, INC. 135

"Y" they proceeded at their own risk with respect to trucks driving toward the tunnel.

[7] We are convinced that appellants did' not sustain the burden of justifying the position of their truck on the left side of the road, and, accordingly, the trial court was justified as to this phase of the matter in refusing to find respondent Wentz guilty of contributory negligence. The court's findings of fact support its conclusion:

"That the defendant Ralph Scherer was guilty of negligence which proximately caused the collision in the following particulars:

"(a) In failing to operate his truck on the right-hand side of the road when he was aware of approaching traffic by the change of shift.

"(b) In failing to keep a proper look-out and timely observe the crossing of the plaintiff's car in the road ahead."

Appellants contend that the damages assessed by the trial are excessive. From the evidence submitted, the trial court found that respondent's earning power had been diminished by fifteen hundred dollars a year. This finding is attacked for the reason that the appellants did not prove the amount of wages Wentz could earn in his present physical condition. It is argued that, in the absence of such proof, the trial court must have resorted to conjecture as to the diminution of respondent's earning capacity.

The evidence shows that, at the time of the accident, respondent's rate of income was $4,461 a year for a fifty-twohour week. At the time of trial, the hourly wage rate had increased so that Wentz would have been earning $5,813.60 a year in doing the same type of work for a fifty-two-hour week, or $4,392 a year for a forty-hour week. With regard to his future earning capacity, the evidence showed that Wentz had only a third grade education and could neither read nor write. He had engaged in manual labor all of his life and was untrained for any other kind of work. He was blind in his left eye as .a result of a long-existing condition.

His attending physician, Dr. Adams, who is an orthopedic surgeon, testified that Wentz would be unable to perform manual labor but could do light work within the realm of

136 WENTZ v. T. E. CONNOLLY, INC. [45 Wn. (2d)

his educational ability. Specifically, Dr. Adams stated that Wentz could dispense gasoline at filling stations but could not change heavy tires and would have difficulty in wiping windshields. Dr. Adams stated that Wentz would be unable to work as a janitor. He did believe that Wentz could do the work of a night watchman. Dr. Adams concluded by saying that the field of work Wentz could do, in view of his education and physical condition, is quite limited, as far as competing in the labor market is concerned.

Wentz testified that he had worked at only two jobs between the time of the accident and the trial. In each case, the pain and disabilities caused by the accident prevented him from continuing the employment beyond three or four days.