Anderson v. Rohde

• Decision Date: 07 January 1955
• Docket Number: No. 32887,32887
• Citation: 46 Wn.2d 89,278 P.2d 380
• Court: Washington Supreme Court
• Parties: Leslie Davis ANDERSON, Respondent, v. Roy ROHDE, a minor, through his Guardian ad Litem, Eileen Rohde, Appellant.

Page 89

46 Wn.2d 89

278 P.2d 380

Leslie Davis ANDERSON, Respondent, v. Roy ROHDE, a minor, through his Guardian ad Litem, Eileen Rohde, Appellant.

No. 32887.

Supreme Court of Washington, Department 2.

Jan. 7, 1955.

Harley W. Allen, Paul R. Roesch, Walla Walla, John F. Kilkenny, Pendleton, Or., for appellant.

Tonkoff, Holst & Hopp, Yakima, for respondent.

HILL, Justice.

Three actions involving the collisions of three motorcycles with an automobile driven by Roy Rohde were consolidated for trial. The motorcycles had been traveling in one direction and the Rohde car in the opposite direction when they collided. The jury brought in verdicts for two of the plaintiffs (passengers on the first two motorcycles to collide with the Rohde car) but brought in a verdict for Rohde in the other case, thereby denying the plaintiff in that case, Leslie Davis Anderson, the driver of the third motorcycle to collide with the Rohde car, any recovery. The trial court entered an order granting a new trial to Anderson, and Rohde appeals.

The trial court in its order enumerated seven reasons therefor. The trial court was correct in concluding that certain instructions given were erroneous, and we are satisfied that at least two of them were prejudicially erroneous. Consequently, the order granting a new trial must be affirmed. We will therefore not concern ourselves with two of the reasons given, i. e., that substantial justice was not done, and that the verdict in the Anderson case was not consistent with the verdicts in the other two cases. If there is merit in either of those reasons, the granting of a new trial is all that could be done as a corrective, and that has been done.

The other reasons involve the propriety of instructions Nos. 23, 24, 25, and 26, and the defense of assumption of risk.

Instruction No. 23 covered the doctrine of volenti non fit injuria and was taken practically verbatim from the instruction in Ewer v. Johnson, 1954, 44 Wash.2d 746, 270 P.2d 813. While instruction No. 23 is a correct statement of the law, we agree with the trial judge that it had no application to the facts in the case at bar. We pointed out in the Ewer case, supra, and in Walsh v. West Coast Coal Mines, 1948, 31 Wash.2d 396, 197 P.2d 233, that the doctrine of volenti non fit injuria is predicated upon the theory of knowledge and appreciation of the danger involved and a voluntary assent thereto; it involves the taking of a calculated risk. See, also, Kingwell v. Hart, 1954, Wash., 275 P.2d 431.

Appellant cites and relies upon Mitchell v. Rogers, 1950, 37 Wash.2d 630, 225 P.2d 1074. In that case Mitchell, the plaintiff, met a truck along a straight stretch of highway, headed in the opposite direction from that Mitchell was traveling. The truck had stalled and was parked, and two or three cars had stopped behind it. The highway was clear on Mitchell's side of the road when he started to pass the truck. Rogers, who was traveling in the direction that the parked truck and the cars behind it were facing, applied his brakes as he approached them but, being unable to stop in time, pulled out from behind the stopped cars and attempted to pass between the approaching Mitchell car and the parked truck and cars, but ran into Mitchell's car. It is to be noted that Mitchell recovered no judgment against Rogers and Rogers sought no recovery against Mitchell. Rogers was not a party to the appeal. Mitchell's judgment was against Preston, the driver of the stalled truck, and against Heimbigner, its owner.

In retrospect, it must be acknowledged that our handling of the doctrine of volenti non fit injuria in that case has led to the mistaken conclusion that we held that a defense based upon that doctrine was there properly submitted to the jury. That, however, is not so. After explaining the doctrine, we said, 37 Wash.2d at page 647, 225 P.2d at page 1085:

'In the present case, had Mitchell been aware that the Rogers car was approaching him in the wrong lane, and had nevertheless elected to continue down the highway, it might possibly be said that he had voluntarily exposed himself to an obvious danger. But, here, it must be remembered that Mitchell was driving in his own lane, and that, according to his testimony, all that he saw coming in the other direction was an automobile which was slowing down in its proper lane behind the stalled truck. There was always a possibility that another unseen automobile would come suddenly out from behind the one he saw, and strike his automobile. But whether this possibility constituted such a clear danger that he should have acted differently than he did was, we think, clearly a question for the jury. The court's instruction No. 13 submitted the matter to it in the following language:

"You are instructed that one may not cast the burden of his own protection upon another. He owes a duty to himself. The Law does not permit him to close his eyes to danger and then if he is injured as a result of such danger to seek a remedy in damages against another, or be excused from the consequences of his own acts. He must use his own intelligence and faculties for his own protection. If you find from a fair preponderance of the evidence that either of the plaintiffs failed to so exercise his faculties and intelligence and that such failure on his part contributed to the injuries suffered by him, if any, then your verdict must be for the defendant so far as that plaintiff is concerned." (Italics ours.)

In that statement we pointed out that it could not be said as a matter of law that the plaintiff Mitchell had voluntarily exposed himself to an obvious danger. Using the language italicized above, we then passed to a concept of contributory negligence and said that the instruction quoted 'submitted the matter [whether Mitchell should have acted differently] to it [the jury] in the following language.' The 'matter' submitted to the jury by the instruction quoted obviously refers not to volenti non fit injuria but to the sentence which immediately precedes the instruction, which suggests the possibility of contributory negligence if Mitchell had failed to do something he should have done.

The instruction quoted was not submitted and was not given as an instruction on the doctrine of volenti non fit injuria. It is not consistent with the knowledge and appreciation of and the voluntary assumption of danger upon which that doctrine is based. To avoid any future misunderstanding, we now state that our only holding in Mitchell v. Rogers, supra, with reference to volenti non fit injuria is that, under the facts in that case, plaintiff Mitchell did not, as a matter of law, voluntarily assume the risk of injury. In our opinion, if there was a question for the jury on that issue in that case it was based upon the fact that the highway to the left of the stalled truck and the cars behind it was wide enough for two cars to meet and pass each other. If it was not, it could not even be contended that Mitchell was confronted with an obvious danger, for if the roadway was so narrow that there was room for only one car to pass the parked vehicles and...