Case v. Olwell

• Court: Washington Court of Appeals
• Writing for the Court: SWANSON; JAMES, C.J., and FARRIS
• Citation: Case v. Olwell, 463 P.2d 664, 1 Wn.App. 766 (Wash. App. 1970)
• Decision Date: 12 January 1970
• Docket Number: No. 11--39975--I
• Parties: Linda CASE, a minor, by William A. Case, her Guardian ad Litem, and William A. Case, individually, and Jeanette Wyatt, a minor, by Margot Wyatt, her Guardian ad Litem, Respondents, v. David H. OLWELL, as Special Administrator of the Estate of Thomas Lane Clark, Respondent, and Robin King, a minor, and Douglas McLean, and Shirley McLean, his wife, Appellants.

Page 766

1 Wn.App. 766

463 P.2d 664

Linda CASE, a minor, by William A. Case, her Guardian ad Litem, and William A. Case, individually, and Jeanette Wyatt, a minor, by Margot Wyatt, her Guardian ad Litem Respondents, v. David H. OLWELL, as Special Administrator of the Estate of Thomas Lane Clark, Respondent and Robin King, a minor, and Douglas McLean, and Shirley McLean his wife, Appellants.

No. 11--39975--I.

Court of Appeals of Washington, Division 1, Panel One.

Jan. 12, 1970.

Kempton, Savage & Gossard, Anthony Savage, Jr., Seattle, for appellants.

Frank J. Eberharter and Robert Ward Freedman, Seattle, for respondent.

Rutherford, Kargianis & Austin, Samuel C. Rutherford, Seattle, for plaintiff-respondent Linda Case.

SWANSON, Judge.

The south end of Seattle's Aurora Bridge on a dark, rainy night in January, 1966, was the scene of a collision between a Volkswagen automobile driven by 16-year-old Robin King, and Thomas Clark's following car. Plaintiffs, Linda Case ¹ and Jeanette Wyatt, ² were riding in the back seat of the Volkswagen. They claimed injuries from the accident and sued Clark, ³ alleging negligence. They later joined King, ⁴ hereinafter referred to as the sole appellant, alleging gross negligence. Clark denied liability and also sued King for damages to his vehicle.

The jury returned verdicts in favor of plaintiffs Case and Wyatt (passengers in the King vehicle) and Thomas Clark (driver of the following car), all against King. King appeals.

Appellant King first assigns error to the publication and reading of Clark's deposition. Clark's deposition was taken on July 13, 1966, prior to the time Robin King and her parents were brought in as additional party defendants. On the day set for trial, May 22, 1967, the parties learned that respondent Clark had committed suicide the previous evening. His deposition was read into evidence over the objection of appellant King. The court instructed the jury that the deposition was not to be considered against King, as she had not been a party when it was taken. Appellant King claims it was error to publish Clark's deposition. She contends that the precautionary instruction given by the court was insufficient to protect her rights and that the deposition should not have been read at all. Respondent Clark argues that CR 26 controls. The rule provides (d) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions.

(3) Unavailability of Witnesses. The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:

(A) that the witness is dead; * * *.

The trial court correctly held that CR 26 prevented the use of the deposition against the appellant King, but that the deposition could be used by the plaintiffs and the respondent Clark. The trial court orally instructed the jury that they were not to consider Clark's deposition testimony as against the appellant. Although King claims that the judge's cautionary instruction was not sufficient the presumption is that the jury followed the instruction which was repeated several times. Myers v. Harter, 76 Wash.Dec.2d 940, 459 P.2d 25 (1969).

It should be noted that appellant King had several other procedures open to her at trial, had she thought the cautionary instruction an insufficient safeguard of her interests. She could have submitted a written instruction to be read at the close of the case. This, she did not do. She could have moved for a separate trial under CR 42(b). ⁵ This, likewise, was not done. Having not sought these remedies, appellant will not now be heard to complain.

Appellant secondly assigns error to the court's instructions 14 and 15 which read as follows:

14. No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal to the driver of any vehicle immediately to the rear where there is an opportunity to do so.

15. Our laws further provide that 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.

A vehicle operator who intends to change lanes is required to clearly signal this intention to other traffic a reasonable distance prior to turning the vehicle.

It is King's position that there was no evidence introduced at the trial to justify giving these instructions. A somewhat detailed review of the evidence is therefore necessary.

Aurora Avenue in Seattle is a 2-way, divided, major arterial, multiple lane highway, with a posted speed limit of 40 miles per hour. It is intersected on the west side by Raye Street, adjacent to the Aurora Bridge. All lefthand turns from Raye Street into Aurora Avenue are prohibited. Halladay Street intersects Aurora Avenue on the east side, south of the bridge. Likewise, all left turns from Halladay Street into Aurora Avenue are prohibited. (See diagram.)

The fact of the accident is undisputed. The King vehicle was struck from the rear by an automobile driven by the respondent Thomas Clark. It was raining heavily, but the area was well-lighted. There was no obstruction to a view of the scene of the accident from approximately one block beyond Halladay Street to the south. The facts leading up to the accident itself are in dispute and are the focal point of this appeal.

Evidence supporting one version of the accident was given to investigating police officers at the scene. Miss King told them she made a left turn from Raye Street onto Aurora Avenue. If this is true, she crossed the southbound traffic lanes on her way into the northbound lane adjacent to the center line. She proceeded only a short distance, northerly of the intersection of Raye Street and Aurora Avenue, onto the bridge, when Clark's vehicle struck the rear of the Volkswagen. Respondent Clark, in the presence of Miss King, told the police that he was driving north on Aurora and was unable to stop in time after first seeing the rear lights of King's Volkswagen. Both plaintiffs Wyatt and Case said Miss King made a left turn from Queen Anne Hill onto Aurora Avenue, northbound. This version is consistent with Clark's deposition testimony in which he stated the Volkswagen made a left turn in front of him into the northbound lane of travel on Aurora Avenue.

The second version of the accident was given at the trial. Miss King and the passengers in her vehicle testified that they drove west on Halladay Street, stopped at the stop sign, and made a right turn...