Ashcraft v. Wallingford, 1242-III

• Decision Date: 23 June 1977
• Docket Number: No. 1242-III,1242-III
• Citation: 17 Wn.App. 853,565 P.2d 1224
• Parties: Ray ASHCRAFT, Appellant, v. Glenn WALLINGFORD and Jane Doe Wallingford, his wife, Respondents.
• Court: Washington Court of Appeals

Page 853

17 Wn.App. 853

565 P.2d 1224

Ray ASHCRAFT, Appellant, v. Glenn WALLINGFORD and Jane Doe Wallingford, his wife, Respondents.

No. 1242-III.

Court of Appeals of Washington, Division 3.

June 23, 1977.

Edward B. Critchlow, Critchlow, Williams, Ryals & Schuster, Richland, for appellant.

Diehl R. Rettig, Loney, Westland, Raekes, Rettig & Sonderman, Kennewick, for respondents.

ORDER FOR RECONSIDERATION ON THE MERITS

On January 17, 1977, an opinion was filed in this matter affirming the judgment of the trial court. In that opinion, this Court ruled the comparative negligence statute, RCW 4.22.010, was inapplicable because this cause of action arose more than three years prior to the effective date of the comparative negligence statute, and not during the applicable period of the statute of limitations prior to that date. In reaching this decision, this Court relied on the following language in Godfrey v. State, 84 Wash.2d 959, 961, 968, 530 P.2d 630, 631, 635 (1975):

RCW 4.22.010 and .020 apply retrospectively to causes of action having arisen prior to the statute's effective date of April 1, 1974, but in which trials have begun subsequent thereto.

We hold that sections 1 and 2 were intended to operate fully; that the statute was intended to be operative on the effective date set forth therein; and, that the statute was designed to apply to all causes of action having arisen during the applicable period of limitation prior to that date though trials may have been commenced thereafter, subject of course to applicable statutes of limitations.

The facts in Godfrey, however, did not indicate when that cause of action arose. On February 3, 1977, a motion for reconsideration was filed in this Court, and on February 10, 1977, a response to that motion was filed. Subsequently, it was brought to this Court's attention that the date the cause of action arose in Godfrey was outside the statute as in this case. A petition for review having already been filed in the Supreme Court, this Court requested that the Chief Justice remand this matter for reconsideration on the merits. By order dated April 29, 1977, the Chief Justice granted the Court's request.

Therefore, it is ordered this matter shall be reconsidered on the merits by the Court without additional argument or briefs.

GREEN, Judge.

Plaintiff brought this action against the defendants for damages arising from an automobile collision, which occurred when both parties attempted to pass a third vehicle. From a summary judgment granted in favor of defendants, ¹ plaintiff appeals.

The propriety of the summary judgment presents the sole issue on appeal. Plaintiff contends (1) issues of material fact exist as to his contributory negligence, and as to defendant's last clear chance to avoid the collision; and (2) comparative negligence applies. We affirm.

In considering a motion for summary judgment, the court's function is to determine whether a genuine issue of material fact exists, not to resolve the issue. A material fact is one upon which the outcome of the litigation depends, and the moving party has the burden of proving by uncontroverted facts that no genuine issue exists. All material evidence and all reasonable inferences must be construed most favorably to the nonmoving party, and if reasonable men might reach different conclusions, the motion should be denied. Where the moving party supports the motion with evidentiary matter, the nonmoving party must demonstrate the existence of an issue of material fact by a showing beyond the allegations in the pleadings. Amant v. Pacific Power & Light Co., 10 Wash.App. 785, 520 P.2d 181 (1974), aff'd, 84 Wash.2d 872, 529 P.2d 829 (1975); LaPlante v. State, 85 Wash.2d 154, 531 P.2d 299 (1975); CR 56(c). With these rules in mind, we turn to the record.

The defendant, Glenn Wallingford, sets forth his version of the collision in his affidavit:

That on or about February 2, 1971, at the approximate hour of 1 p. m. this affiant pulled out onto Highway 12 heading north towards Grandview and was following a red Falcon pickup at an approximate speed of 45 to 50 miles per hour and proceeded to lawfully pass the red pickup and was nearly parallel with the red pickup when the red pickup made a sharp left turn into the passing lane then being driven by affiant and a collision between the vehicles occurred; . . .

This affidavit is accompanied by two photographs: the highway where the accident occurred, and the damaged red Falcon pickup. From these photographs it is evident that the highway is straight, 2-lane, with an unobstructed view, and that the primary damage to the pickup is to the left front door, left front fender and lesser damage along the entire left side. However, there is no damage to the direct rear of the pickup.

Plaintiff expressed his version of the accident by affidavit, stating preliminarily that he recalls few of the details of the collision. However, he does remember that while proceeding on sign Route 12 toward Grandview at approximately 50 miles per hour, he approached a white Plymouth automobile traveling in the same direction at 25 to 35 miles per hour. He pulled into the passing lane and when "approximately equal to the white Plymouth being passed, (his) automobile was struck from the rear by an automobile traveling at a very high rate of speed." Plaintiff further states that "although he has no direct recollection of so doing, it is his normal habit to turn on his directional signal lights when passing a car or changing lanes and to look into his rear-view mirror." He has no recollection of seeing any car to his immediate rear "although one may have been a sufficient distance back to form no impression whatsoever upon affiant as to the suitability of passing a car preceding him." In answers to interrogatories, plaintiff states that defendant's vehicle was traveling much faster than his vehicle.

The affidavit of Dale F. McKenzie, one of plaintiff's attorneys, states that defendant admitted immediately after the collision that he saw plaintiff's flashing signal light prior to the accident indicating a change of lane. This affidavit states the investigating officer's report revealed that "defendant's automobile skidded for 93' before striking plaintiff's automobile from the rear . . . ."

Diehl R. Rettig, attorney for defendant, in his affidavit refers to portions of plaintiff's deposition where it is stated: (1) While he does not remember whether he turned around and looked before he moved into the passing lane, he normally does not do so on a 2-lane road; (2) He is aware that cars have blind spots and also that people have blind spots in their vision; and (3) He has no recollection of looking in his rear-view mirror prior to passing.

Plaintiff's deposition, in substance, states that he does not recall the collision; that subsequent observations show his pickup was struck on the left rear side; that although he does not recall looking, he habitually watches his inside and outside rear-view mirrors while driving; that he did not see defendant's vehicle; that he recalls the hood on his car was about even with the rear trunk of the white Plymouth when the collision occurred; and that somebody measured 96 feet of skid marks left by defendant's vehicle.

Based on this record, the trial court granted summary judgment. Although the record does not reflect the basis for the summary judgment, plaintiff's brief indicates the central issue was whether he was contributorially negligent as a matter of law. Plaintiff contends the record creates an issue of material fact as to his negligence and, therefore, summary judgment was improper. We disagree.

RCW 46.61.305(1) provides:

No person shall turn a vehicle . . . from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety.

Where the evidence is uncontroverted that the defendant's overtaking vehicle was in the passing lane prior to the attempted movement into that lane by the plaintiff, plaintiff's failure to observe such traffic in the passing lane immediately before initiating his movement renders him negligent as a matter of law. Niven v. MacDonald, 72 Wash.2d 93, 431 P.2d 724 (1967); Hurst v. Struthers, 1 Wash.App. 935, 465 P.2d 416 (1970). However, the issue is for the trier of fact if the evidence is conflicting as to whether defendant's overtaking vehicle was in the passing lane at the time plaintiff attempted to change lanes. Schaffner v. Saunders, 6 Wash.App. 657, 495 P.2d 702 (1972). In McGlothlin v. Cole, 3 Wash.App. 673, 677, 477 P.2d 47, 50 (1970), the court stated:

The left-turning driver should be held negligent as a matter of law only when reasonable minds cannot differ on the proposition that had the left-turning driver looked for possible traffic in the passing lane immediately before starting the left turn across it, he would have seen the passing car which necessarily was in that lane before the driver started the left turn. In such situation the left turn could not be made with reasonable safety. . . . When reasonable minds can differ on this proposition, the issue of negligence is for the trier of fact.

Here, the following facts are uncontroverted: (1) the highway was straight and unobstructed; (2) defendant's vehicle left 93 feet of skid marks; (3) the damage to plaintiff's pickup was primarily to the left forward side, with minor damage to the left taillight; (4) the damage to defendant's car was on the right front...