Billington v. Schaal

• Decision Date: 17 July 1953
• Docket Number: No. 32223,32223
• Court: Washington Supreme Court
• Parties: BILLINGTON et ux. v. SCHAAL et ux.

Page 878

42 Wn.2d 878

259 P.2d 634

BILLINGTON et ux. v. SCHAAL et ux.

No. 32223.

Supreme Court of Washington, en Banc.

July 17, 1953.

Kahin, Carmody & Horswill, Seattle, (Burton C. Waldo and John C. Huston, Seattle, of counsel), for appellant.

William R. Thomas, Jr., Rode, Cook, Watkins & Orth, Seattle, for respondent.

HAMLEY, Justice.

This action arose as a result of a rearend automobile collision which occurred on East Marginal Way, in Seattle.

The accident occurred at eleven o'clock p. m. The streets were wet. There was little traffic. Both cars were traveling south in the same lane, and had reached a point near the traffic signal light opposite the main entrance to the administration building of the Boeing Airplane Company. This light changes between green and red at periodic intervals, without an intervening amber light. Leonard Billington was driving the forward vehicle, and R. B. Schaal was driving the rear vehicle.

According to Billington's version of how the accident occurred, the light changed from green to red when he was ninety to one hundred feet north of the traffic light. It was his testimony that he came to a gradual but complete stop at the north crosswalk, after giving the proper hand signal. According to him, his vehicle, after then remaining stationary a few seconds, was struck from the rear by Schaal's automobile, and propelled forward to a point about even with the center traffic light.

According to Schaal's version, he was following about two car lengths behind Billington's vehicle as the two cars proceeded down the street. Schaal testified that Billington's automobile passed over the north crosswalk while the light was still green. Schaal stated that he therefore assumed that Billington intended to continue through the light, and decided to do likewise. The accident occurred, according to Schaal, when Billington suddenly stopped just under the light as it turned red, affording Schaal no opportunity to stop or swerve.

Billington and his wife sued Schaal and the latter's wife. The jury returned a verdict for defendants. Judgment was entered accordingly. Plaintiffs appeal. Billington and Schaal will be referred to as if they were the only appellant and respondent.

Appellant assigns as error the failure to give his proposed instruction No. 10. This instruction reads as follows:

'You are instructed that the duty is upon the driver of a vehicle which is following another vehicle to keep such distance from the vehicle ahead of him, and to maintain such observation of the vehicle ahead of him, that by the exercise of reasonable care such emergency stop as may be dictated by ordinary traffic conditions may be safely made.'

It was appellant's contention throughout the trial that respondent had been negligent in driving in such close proximity to the rear of appellant's automobile that respondent was unable to stop when confronted with an emergency which was reasonably to be anticipated. Evidence submitted by appellant tended to support this contention. The quoted instruction would have presented that theory of the case to the jury. It embodies a correct statement of the law. Ritter v. Johnson, 163 Wash. 153, 300 P. 518, 79 A.L.R. 1270; Larpenteur v. Eldridge Motors, 185 Wash. 530, 55 P.2d 1064; Cronin v. Shell Oil Co., 8 Wash.2d 404, 112 P.2d 824; Miller v. Cody, 141 Wash.2d 775, 252 P.2d 303.

Respondent does not deny what has just been said. He argues only that failure to give the instruction was not prejudicial. In support of this view, respondent asserts that appellant's theory of the case was adequately covered by instructions Nos. 12, 13, 16 and 20.

Instruction No. 12 was to the effect that a driver has the right to assume that other drivers will comply with the law, until he knows or should know to the contrary. No. 13 told the jury that it was the duty of a driver to keep a reasonably adequate lookout in view of existing circumstances and whatever dangers are reasonably to be apprehended. No. 16 advised that violation of an ordinance or statute by either driver would constitute negligence in and of itself, but that it was not necessary to show a violation of some specific ordinance or statute in order to establish negligence. No. 20 called attention to a Seattle traffic ordinance which requires drivers to keep a 'safe distance' behind an immediately preceding vehicle, and in no event to draw nearer to such vehicle than three feet.

It will be noted that No. 20 is the only one of these instructions which makes any specific reference to the duty of a following driver. That instruction refers only to the Seattle ordinance which states in general terms the duty of such drivers, with the one specific requirement that a distance of at least three feet be maintained. Neither this nor any other instruction advised the jury, as proposed instruction No. 10 would have done, regarding the following driver's duty to be prepared to meet emergencies which could reasonably be anticipated. As this went to the very heart of appellant's case, we believe that failure to give proposed instruction No. 10 was prejudicial error. See Allen v. Hart, 32 Wash.2d 173, 201 P.2d 145.

The cause must, for this reason, be remanded for a new trial. We have examined the other assignments of error relative to instructions given and refused, and find no error, except as to instruction No. 20 1/2. On the new trial, that instruction should be modified to make clear that, if the jury finds that appellant stopped in obedience to the traffic signal, he was not required to indicate his intention so to do, and that respondent would be negligent if his vehicle was traveling in too close proximity to the car ahead, due to failure on his part to exercise reasonable care. This would correctly correlate instruction No. 20 1/2 with proposed instruction No. 10.

The one remaining assignment of error relates to the exclusion of certain evidence offered by appellant. As this question may arise again on the new trial, we will consider the matter at this time.

While respondent (defendant) was putting on his case, he called as a witness a Seattle police officer who had arrived at the scene of the accident five or ten minutes after it occurred. On cross-examination, appellant offered to prove by this officer that on the night of the accident, after making the investigation, seeing the situation, and talking to the parties, the officer issued a citation to Schaal for following too closely. The offer was refused.

Appellant did not advise the trial court, nor has he told us, the purpose for which this testimony was offered. If it was offered for the purpose of establishing the truth of the facts alleged in the complaint, i. e., that Schaal was following too closely, it was clearly inadmissible. Even a conviction resulting from issuance of the citation could not be shown for that purpose, though if it were based upon a plea of guilty, the plea might be shown as an admission against interest. Reynolds v. Donoho, 39 Wash.2d 451, 454, 236 P.2d 552. See, also, Burbank v. McIntyre, 135 Cal.App. 482, 27 P.2d 400. But a mere arrest or citation has still less relevancy with respect to the truth of the facts in issue, since it is quire consistent with innocence. 3 Wigmore on Evidence (3rd ed.) 545, § 980a. See Lundberg v. Baumgartner, 5 Wash.2d 619, 106 P.2d 566; Paul v. Brown, 108 Vt. 458, 189 A. 144, 109 A.L.R. 1085; Coyne v. U. S., 5 Cir., 246 F. 120; Burbank v. McIntyre, supra.

While an arrest or citation might be said to evidence the on-the-spot opinion of the traffic officer as to respondent's negligence, this would not render the testimony admissible. It is not proper to permit a witness to give his opinion on questions of fact requiring no expert knowledge, when...