Leach v. Weiss

Decision Date20 April 1970
Docket NumberNo. 176--40744--I,176--40744--I
Citation2 Wn.App. 437,467 P.2d 894
PartiesSusan E. LEACH, a minor, individually and by and through her Guardian ad Litem, Arthur B. Leach, Respondent, v. Robert G. WEISS and Jane Doe Weiss, his wife, individually and as a community, and the Estates of Carl Clark Statler, Deceased and Elmeda Statler, Deceased; and Ronald Clayton Statler, Executor of the Estates of Carl Clark Statler and Elmeda Statler, Deceased, Appellants. Arthur B. LEACH, Respondent, v. Robert G. WEISS and Jane Doe Weiss, his wife, individually and as a community; and the Estates of Carl Clark Statler, Deceased and Elmeda Statler, Deceased; and Ronald Clayton Statler, Executor of the Estates of Carl Clark Statler and Elmeda Statler, Deceased, Appellants.
CourtWashington Court of Appeals

Reed, McClure & Moceri, William R. Hickman, Thomas W. Huber, Seattle, for appellants Weiss.

Davies, Pearson, Anderson, Pearson & Gadbow, Alvin A. Anderson, Tacoma, for appellant Statler.

Norman E. Bradley and Neal, Bonneville, Hughes & Viert, William G. Viert, Tacoma, for respondents.

SWANSON, Judge.

On July 3, 1966, defendants Weiss were traveling easterly on Interstate 5 toward Tacoma, towing a small camping trailer. As they approached the Nisqually bridge, a tire on the trailer blew out, dislodging the hubcap. Weiss stopped the car and trailer on the bridge proper, retrieved the hubcap, and started to remove the flat tire. He directed his daughter to warn oncoming traffic and to set out reflectors on the highway. Eastbound traffic had to use the inside lane to pass Weisses' disabled car and trailer. Traffic moved past the trailer at the rate of about 20 miles per hour.

Carl and Elmeda Statler, likewise driving easterly toward Tacoma, neared the Nisqually bridge some 15 to 20 minutes later. As they approached the bridge, Statler braked his vehicle, skidded, crossed the center line of the highway, and struck Leaches' vehicle which was westbound toward Olympia. The Statlers and Mrs. Leach were killed as a result of the collision. Arthur and Susan Leach, the plaintiffs here, were injured. At the time of the impact, or shortly thereafter, Weisses left the scene. Leaches sued the Weisses and the Statlers' estates. 1

After several days of trial, the trial court granted directed verdicts against all defendants. Only the issue of damages was presented to the jury. Defendants appeal and assign error to the trial court's ruling granting plaintiffs' motions for directed verdicts as to liability. The Statlers also assign error to the failure of the court to give several proposed instructions. As to proposed instruction 4, Statlers have not complied with CAROA 43. The instruction has not been set out in full as given to the trial court. The alleged error will not be considered.

In considering the correctness of the trial court's ruling, we are mindful of Const. art. 1, § 21, which provides that the right of a trial by jury shall be preserved inviolate. Further, this court is bound by the rule stated in Guerin v. Thompson, 53 Wash.2d 515, 519, 335 P.2d 36, 39 (1959):

The court can determine negligence, as a matter of law, when (1) the standard of care fixed is the same under all circumstances, and its measure is defined by law, and (2) where the facts are undisputed and there is but one reasonable inference therefrom.

To determine the existence or nonexistence of a question of fact, the court, in ruling on a motion for a directed verdict, must admit the truth of the opposing party's evidence and all inferences which reasonably can be drawn therefrom. The court must interpret the evidence most strongly against the movant. Holland v. Columbia Irrig. Dist., 75 Wash.Dec.2d 312, 450 P.2d 488 (1969).

Likewise, since a directed verdict of liability takes the question of proximate cause from the jury, we must view the trial court's action against the appropriate test. It must be remembered:

There is, of course, a distinction between an actual cause, or cause in fact, and a proximate, or legal, cause.

An actual cause, or cause in fact, exists when the act of the defendant is a necessary antecedent of the consequences for which recovery is sought, that is, when the injury would not have resulted 'but for' the act in question. But a cause in fact, although it is a Sine qua non of legal liability, does not of itself support an action for negligence. Considerations of justice and public policy require that a certain degree of proximity exist between the act done or omitted and the harm sustained, before legal liability may be predicated upon the 'cause' in question. It is only when this necessary degree of proximity is present that the cause in fact becomes a legal, or proximate, cause.

The most usual definition of proximate cause of an event is: that cause which, in a natural and continuous sequence, unbroken by any new, independent cause, produces the event, and without which that event would not have occurred.

Eckerson v. Ford's Prairie School Dist. No. 11, 3 Wash.2d 475, 482, 101 P.2d 345, 349 (1940). See Guerin v. Thompson, Supra. It is only when the facts are undisputed and the inference plain that proximate cause becomes a question of law. Ward v. Zeugner, 64 Wash.2d 570, 392 P.2d 811 (1964).

Recognizing that the appropriate rules are more readily stated than applied, it is uncontested that the Statler car crossed the center line of the highway and collided with the Leach vehicle. It is likewise clear that the standard of care is fixed by law and is the same under all circumstances. RCW 46.61.100 provides:

(1) Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:

(b) When an obstruction exists making it necessary to drive to the left of the center of the highway; provided, any person so doing shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard;

(3) Upon any roadway having four or more lanes for moving traffic and providing for two-way movement of traffic, no vehicle shall be driven to the left of the center line of the roadway, except when authorized by official traffic control devices designating certain lanes to the left side of the center of the roadway for use by traffic not otherwise permitted to use such lanes, or except as permitted under subsection (1)(b) hereof.

The violation of this statute is negligence per se. Steadman v. Shackelton, 52 Wash.2d 22, 322 P.2d 833 (1958).

Likewise, we are unable to say that the presence of the Statler car on the wrong side of the road was not a proximate cause of plaintiffs' injuries under the test given, Supra. In fact, in cases such as this, the failure to drive to the right of the center line is negligence and makes a prima facie showing of proximate cause as a matter of law. Zahler v. Dittmer, 50 Wash.2d 32, 308 P.2d 689 (1957).

This is not to say that cases like this may not raise a question of fact. A violation of RCW 46.61.100 may be excused.

(W)here an automobile skids over onto its left-hand side of the road and collides with another automobile, the burden is upon the driver on the wrong side of the road to Justify the violation of the law of the road and Establish that he was free from fault.

(Italics ours.) Weaver v. Windust, 195 Wash. 240, 242, 80 P.2d 766 (1938). Accord, Rumford v. Snider, 31 Wash.2d 431, 197 P.2d 446 (1948).

The trial court felt there was no evidence of excusatory conduct on the part of Mr. Statler and thus refused Statlers' requested instructions 18 and 27. These instructions state, respectively:

A person, who is suddenly confronted by an emergency through no negligence of his own and who is compelled to decide instantly how to avoid injury and who makes such a choice as a reasonably careful person placed in such a position might make, is not negligent even though he does not make the wisest choice.

You are instructed that under the laws of the State of Washington, an operator of a vehicle is required to operate the vehicle on the right of the center of the highway. However, the failure of the driver of a motor vehicle to keep to the right side of the highway is excused where, without fault on his part, his automobile skids across the center line of the road.

Where skidding results from the negligence of the driver, he is liable for the injuries proximately resulting therefrom.

To determine if the issue of excuse should have gone to the jury, we look at the evidence most favorable to Statlers. Carl Statler, with his wife seated beside him, approached the bridge while driving east toward Tacoma in the inside lane. The testimony most favorable to him indicated that he was driving at about 50 miles per hour. The pavement was wet and slippery. The speed limit was 60 miles per hour, and a sign on the bridge prohibited stopping or parking. Richard E. and Juanita L. Shaver were also driving east toward Tacoma but were in the curb lane and slightly behind the Statler vehicle while approaching the bridge. The testimony of Mrs. Shaver indicated there were cars applying their brakes up ahead in the vicinity of the bridge. Mr. Shaver did not see this; and neither did Mr. Statler, for he proceeded at the same rate of speed. Suddenly, Mr. Statler applied his brakes, and we may assume he applied his brakes because of something he observed ahead. He stated after the accident, but before he died, 'What were the cars stopped for ahead?'

Mr. Statler was confronted with an emergency situation, and the law of our state provides that a person who is suddenly confronted with an emergency, through no negligence of his own, and who is compelled to decide instantly how to avoid injury, and makes such a choice as a reasonably careful person placed in such a position might have made, is not negligent even though he does not...

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