Adamson v. Traylor
| Decision Date | 09 August 1962 |
| Docket Number | No. 35905,35905 |
| Court | Washington Supreme Court |
| Parties | James M. ADAMSON, as guardian ad litem of Kevin Adamson, a minor, Appellant, v. Joe W. TRAYLOR and Jane Doe (True Christian name unknown) Traylor, his wife, and the marital community composed thereof, Respondents. |
Horton & Wilkins, Kennewick, for appellant.
Gavin, Robinson & Kendrick and Robert R. Redman, Yakima, for respondents.
This appeal results from a personal injury action, in which a judgment was entered for the defendants upon a jury verdict in their favor.
The nominal plaintiff (appellant), James M. Adamson, brought the action as guardian ad litem of his son, Kevin Adamson, the injured minor. The defendants (respondents) are Joseph Traylor and his wife, but for convenience, we will refer to Joseph Traylor as the single defendant.
The accident which gave rise to this action occurred at Long Lake in Grant County, Washington, the early morning of June 28, 1959. Mr. Adamson, his two sons, Kevin and Brooks, and a friend were at the lake for the purpose of fishing. At the time of the accident, Kevin, the 8-year-old minor, was asleep in a bedroll which lay on the ground in the camping area close to the lake. The bedroll consisted of blankets and a canvas exterior of olive drab color and was situated near a private roadway used by campers to drive into the camping and boat launching area next to the lake. Drivers coming into the area sometimes circled their vehicles off the roadway several feet and there were visible tire ruts in the ground near the roadway. At its nearest point, the bedroll was 18 inches from some tire ruts extending out from the roadway.
It was approximately 4:45 a. m., after sunrise, when the defendant drove into the area accompanied by two other persons in his car. While driving his vehicle off the roadway into the grassy area, so as to maneuver it closer to the boat launching area, the front left wheel of the defendant's vehicle ran over the corner of the bedroll and struck the head of Kevin Adamson, causing him injuries. The defendant admits that he saw the object, which was the bedroll, as he drove into the grassy area, but he testified that at no time, until after the accident, did he recognize the object as a bedroll. He stated that previously he had been in the area on fishing trips and assumed that the object was a piece of cloth debris such as he had seen there before.
At the close of the evidence, the trial court submitted to the jury the issues of negligence of the defendant and contributory negligence of the minor Kevin Adamson. The jury returned a verdict in favor of the defendant. The plaintiff, as guardian ad litem, has appealed.
The plaintiff's first contention raised by his assignments of error is that the trial court permitted the defendant to amend his answer two days before trial, raising the issue of the contributory negligence of the minor's father. The plaintiff excepted to the amendment prior to trial and at the beginning of the case again brought the court's attention to his exception taken to the defendant's amendment. At the conclusion of all evidence at the trial, the defendant conceded he was in error and that the issue of contributory negligence of the father should be taken from the jury.
This is not a case in which an issue is taken from a jury at the conclusion of the evidence by reason of insufficient evidence to support that issue, but is one in which the issue should not have been tried in the first instance, irrespective of the evidence, for the reason that the father in his individual capacity was not a party to the action and, as a matter of law, his negligence could not be imputed to his minor 8-year-old son. Gregg v. King County, 80 Wash. 196, 141 P. 340 (1914).
It was too late at the close of the evidence to instruct the jury to disregard the issue of the father's negligence after his responsibility for causing the accident had been injected into the case during the entire course of the trial. The plaintiff was denied a fair trial in being required to try the case with the continued presence before the jury of this improper and highly prejudicial issue to his cause. Moreover, the court did not successfully accomplish its intention to take this issue from the jury. The instruction given, relative to withdrawing the issue of the father's contributory negligence, is in the court's instruction No. 6, to which the plaintiff took appropriate exceptions:
'You are instructed that, under the law of the State of Washington, the primary duty of caring for Kevin Adamson, the minor plaintiff herein, at the time and place in question was that of his father, James M. Adamson.
'However, you are instructed that the negligence, if any, of the father cannot be imputed to the minor plaintiff in this case.
'You are further instructed that under the circumstances that the negligence of the father, if you so find, will not absolve the defendant from liability of any acts of negligence of the defendant.'
This instruction does not adequately spell out that the contributory negligence of the father was not in the case and should not have been considered by the jury in determining the defendant's liability. To the contrary, it states the father has a paramount duty to care for the child, which, in view of the prior testimony, raised the inference that this was an issue for determination by the jury. This issue had no place in the case, and we cannot say that the instruction did not have the effect of confusing the jury in its consideration of the issue of contributory negligence.
The defendant argues that, admitting contributory negligence of the father was improper for the jury's consideration, instruction No. 6 was nevertheless a correct instruction on the theory that it was a question for the jury to determine whether the negligence of the father was the sole proximate cause of the accident. Such an argument is wholly untenable. The issue before the jury was whether the defendant was negligent. If the jury found the defendant was negligent, the question of the father's negligence would have no bearing in the case, unless his negligence could be imputed to the minor to bar the minor's recovery, which was not permissible. Again, if the jury found the defendant was not negligent, then whether the father's negligence was the sole proximate cause of the accident would be immaterial in determining the defendant's liability.
The defendant argues, however, that the case of Shay v. Parkhurst, 38 Wash.2d 341, 229 P.2d 510 (1951), is authority for the giving of instruction No. 6. The case is not apposite. There the question was whether a taxi driver was entitled to rely on the asserted statement of the custodian of the child, that it was safe for the child to remain standing in the cab. The child, thereafter, fell out the door of the taxicab. Under those circumstances, we held an instruction was proper to the effect that the custodian had the paramount duty to care for the minor child under her care, as it was material to the jury's consideration of the issue of the taxi driver's right to rely on the custodian's above statement. In the instant case, there are no possible inferences from the evidence of reliance by the defendant on statements or conduct by the minor's father. The record shows the defendant was not aware of the presence of either the father or the minor until after the accident.
The giving of instruction No. 6 failed to remove from the jury the issue of the father's contributory negligence with which the record was impregnated.
The plaintiff further assigns error to the submission to the jury of the issue of the contributory negligence of the 8-year-old minor child. The following instruction was given by the court on this issue:
'You are instructed that a child between the ages of 7 and 14 years of age is presumed incapable of contributory negligence as herein defined.
'However, this presumption may be overcome by evidence concerning the age, background, experience, training, intelligence, and knowledge of the child in question.'
No exception was taken to this instruction, and therefore, it may not be challenged in this appeal. Atkins v. Churchill, 30 Wash.2d 859, 194 P.2d 364 (1948).
The plaintiff...
To continue reading
Request your trial
-
Haft v. Lone Palm Hotel
...phrased in 'superseding cause' terms than it had in the context of 'imputed contributory negligence.' (See Adamson v. Traylor (1962) 60 Wash.2d 332, 335--336, 373 P.2d 961, 963; Rest.2d Torts, § 452(1), com. b.) Our rejection of defendants' 'superseding cause' theory, however, does not in i......
-
Ball v. Smith
...which no exceptions are taken become the law of the case and cannot be reviewed on appeal. O'Brien v. Artz, supra; Adamson v. Traylor, 60 Wash.2d 332, 373 P.2d 961 (1962). The appellant, however, maintains that it is not necessary to take exceptions in order to allege error if the rights of......
-
Johnston v. Ohls
...is both necessary and proper. See Blomskog, Erickson & Cotton v. Seattle, 107 Wash. 471, 182 P. 571 (1919); Adamson v. Traylor, 60 Wash.2d 332, 373 P.2d 961 (1962). The trial court's failure to affirmatively withdraw the issue of contributory negligence was error entitling plaintiffs to a n......
-
Poston v. Mathers
...negligence of her father could not be attributed to her. Vioen v. Cluff, 69 Wash.2d 306, 418 P.2d 430 (1966); Adamson v. Traylor, 60 Wash.2d 332, 373 P.2d 961 (1962); Hilstad v. City of Seattle, 149 Wash. 483, 271 P. 264 (1928). The jury understood and followed the instructions of the trial......