Cameron v. Boone

• Decision Date: 27 June 1963
• Docket Number: No. 36146,36146
• Citation: 62 Wn.2d 420,383 P.2d 277
• Court: Washington Supreme Court
• Parties: Lester G. CAMERON and Laurel J. Cameron, his wife, Appellants, v. Lila BOONE, individually and as Executrix of the Estate of Benjamin E. Boone, deceased, Respondent.

Page 420

62 Wn.2d 420

383 P.2d 277

Lester G. CAMERON and Laurel J. Cameron, his wife, Appellants, v. Lila BOONE, individually and as Executrix of the Estate of

Benjamin E. Boone, deceased, Respondent.

No. 36146.

Supreme Court of Washington, Department 2.

June 27, 1963.

Rehearing Denied Aug. 29, 1963.

Stuart K. Nielsen, Seattle, for appellants.

Ogden & Ogden, Seattle, for respondent.

DAWSON, Judge. ¹

An automobile driven by Benjamin E. Boone collided with the rear of a car driven by Lester G. Cameron, plaintiff. Mr. Boone died before trial from causes not arising from the collision.

Mr. Boone's widow, individually and as executrix of his estate, was substituted as defendant. Issues of negligence and contributory negligence, among others, were tried to a jury. Plaintiff appeals from a judgment of dismissal entered after a jury verdict for defendant.

The following undisputed facts are gleaned from a record somewhat devoid of detail. June 12, 1959, appellant drove his automobile in an easterly direction on Bothell Way, in the unincorporated portion of King County known as Kenmore. He passed the Kirkland intersection where a traffic control signal was in operation, and proceeded on the straight, hard-surfaced four-lane highway, in the inner lane, until he brought his car to a stop several hundred feet beyond the intersection, intending (after the heavy traffic proceeding west cleared) to make a left turn in mid-block across a double center line and into a private driveway on the north side of the highway. The center lines were less than four inches apart. While stopped and waiting for an opportunity to make the turn, a vehicle approached appellant from the rear, and passed in the right lane. Shortly thereafter, his car was struck by the Boone vehicle. Whether the car which passed appellant interfered with Mr. Boone's ability to see appellant's car is not known. Skid marks indicated that Mr. Boone had applied brakes at least 25 feet before the impact. There is no testimony as to the speed of the Boone car, none as to weather conditions, and none as to the volume of traffic proceeding east at the time of the accident. No witness saw the collision.

Appellant makes 11 assignments of error. Several are so interrelated that they will not be segregated. In view of our decision, consideration of three of them would be academic and serve no useful purpose.

Three assignments relate to RCW 46.60.020, which restricts vehicular traffic over or across two parallel barrier stripes dividing any four-lane highway. Appellant urges that two instructions given on this issue constitute error; that a directed verdict for appellant was justified because there was a failure to prove contributory negligence.

It is argued that because the barrier stripes were painted by a local authority before its passage, and no local intention is shown to come within its purview, RCW 46.60.020 is not applicable. The fallacy in this argument is that the legislature expressly defined the standard of care and made the standard applicable to all fourlane highways, so divided. RCW 46.60.020. Under its terms, its force is not a matter of local intention, but the act is a complete, self-executing exercise of police power by the state.

Further, it is argued that the statute is inapplicable because the barrier stripes were less than four inches apart.

Phillips v. Richmond, 59 Wash.2d 571, 580, 369 P.2d 299, 304, is in point on this issue. The pertinent and controlling language follows:

'* * * There is no evidence that at the time appellant attempted his left turn he was aware that the distance between the painted stripes was less than four inches and that he acted on the theory that he could legally make a left turn for that reason. Furthermore, the manner of painting the stripes was described in detail by the employees of the state highway department, who testified that the apparatus used properly spaced the distance between the stripes, but that in repainting them on the highway the precise location did not conform exactly with the old stripes. The jury could have properly found from the evidence that the double line so closely resembled a statutory barrier that a reasonably prudent man would have treated it as such. Furthermore, even if he knew at the time he attempted to make his left turn that the stripes were less than four inches apart, and for that reason believed that it was not illegal to turn left at that point, the jury could have properly found that a reasonably prudent driver still should reckon with the possibility that other drivers on the highway would regard the double line as a traffic barrier, so that they would not expect anyone to stop and make a left turn at that point. In that case, such a driver should have decided not to attempt a left turn, because of the danger involved.

'The foregoing has demonstrated that the existence of a statute defining traffic barriers is relevant to the issue of whether appellant was contributorily negligent, even if the painted stripes in this case did not meet the statutory requirements. Therefore, an instruction on the statute was necessary and proper.'

This rule is controlling. Patently, the instructions were necessary; the issue of contributory negligence was for the jury, not the court.

Another assignment of error also bears on the issue of contributory negligence. It relates specifically to instruction No. 10, which we set out:

'The laws of the State of Washington provide: 'A signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning or during a period of time not less than that time required to traverse a distance in feet equal to five times the maximum speed in miles per hour allowed by law during the approach to the point of turning or stopping."

In taking exceptions, the following colloquy ensued:

'* * * There isn't any issue that if a hand signal was given it was given for an adequate length of time, therefore, can only confuse the jury. It doesn't give any definition of the----. THE COURT: You asked for that. MR. NIELSEN: Yes, but evidence has changed a little bit during the trial. I thing it is a bit confusing and isn't too helpful.'

Appellant should have more clearly expressed his intention to withdraw the proposed instruction. However, the instruction was not prejudicial. It precluded speculation by the jury as to the measure of appellant's duty. As the evidence, which was uncontroverted, supported a finding of full compliance by appellant with this duty, and none other, it is difficult to conceive of confusion. Respondent's duties in the premises were fully defined by instruction No. 6, which told the jury that one is charged with the duty of seeing those objects or persons which he would have seen had he been exercising reasonable care; by instruction No. 15, which defined the primary duty of avoiding a collision as resting upon the following driver; and by instruction No. 16, which contained the elements of the humanitarian doctrine of last clear chance. There is no claim that improper argument distorted the instructions given. The jury could not have been misled. Perhaps instruction No. 10 was unnecessary, but it was harmless.

Error is also assigned to the court's refusal to permit inquiry as to drinking by Mr. Boone before the accident. The following pertinent colloquy is taken out of context, and includes the only offer of proof on the issue of drinking:

'MR. OGDEN: * * * I am at this time requesting the court to instruct counsel not to pursue that line which relates to any question of drinking on the part of the deceased. * * * MR. NIELSEN: * * * Your Honor misconstrued it. We are not claiming the Defendant was drunk. * * * THE COURT: It is immaterial. We might as well understand each other. If I am in error you may have your remedy, but you will not bring the liquor in, under your last statement. * * * Would you mind advising me how you intend to bring this drinking out? Is it going to be someone who saw him take a drink, or is it going to be brought out by hearsay testimony? MR. NIELSEN: Only by one party at the scene of the accident that actually talked with him and said the man had some liquor on his breath and admitted having had a drink. * * * THE COURT: The only question in my mind, from the statement made by Mr. Nielsen in chambers and made by him now, whether or not that one drink is material; I don't believe it is. * * * MR. NIELSEN: * * * I don't know what this man is going to say, but I think if he can answer the question, and given the opportunity property, I think he should be entitled to it. We do not say the man was intoxicated.' (Italics ours.)

The witness referred to was Officer Don Graybill, who, before he testified, was admonished by the court: 'The court has eliminated liquor from this case, officer.' A portion of the officer's testimony follows 'Q. Did you notice the condition of Mr. Boone after the accident? A. I talked to Mr. Boone. Q. And what was his condition that you noted? A. I felt that he was greatly excited. Q. Was he in any condition to drive after the accident? A. I did not feel that he should, no. Q. Why would that be? You can answer that. A....