Channel v. Mills

• Decision Date: 17 March 1995
• Docket Number: No. 15857-4-II
• Citation: Channel v. Mills, 890 P.2d 535, 77 Wn.App. 268 (Wash. App. 1995)
• Court: Washington Court of Appeals
• Parties: Harold CHANNEL and Patricia Channel, husband and wife, and Harold Channel as the Personal Representative of the Estate of Christy A. Channel, Deceased, Appellants, v. Jonathan Lee MILLS and Merri Mills, husband and wife, Respondents.

Page 268

77 Wn.App. 268

890 P.2d 535

Harold CHANNEL and Patricia Channel, husband and wife, and Harold Channel as the Personal Representative of the Estate of Christy A. ChannelDeceased, Appellants, v.Jonathan Lee MILLS and Merri Mills, husband and wife, Respondents.

No. 15857-4-II.

Court of Appeals of Washington Division 2.

March 17, 1995.

Duane Lansverk, Landerholm, Memovich, Lansverk & Whitesides, Inc., P.S., Vancouver, for appellants.

Odine H. Husemoen, Norman C. Dick, Walstead, Mertsching, Husemoen, Donaldson & Barlow, P.S., Longview, for respondents.

MORGAN, Judge.

This is a personal injury case in which the plaintiffs appeal a jury verdict in favor of the defendant.¹We affirm.

On August 30, 1986, a two-car collision occurred at the intersection of N.E. 54th Street and St. James Road in Vancouver.Patricia Channel was the driver of one car, and Jonathan Mills was the driver of the other.Keith Anderson, the driver of a third car, narrowly missed being involved.

The intersection at N.E. 54th and St. James is controlled by a red-yellow-green traffic light.N.E. 54th is a two-way street, with one lane for westbound traffic and one lane for eastbound traffic.St. James is a one-way street, with two lanes for southbound traffic.The speed limit on St. James is 35 mph.

Prior to the accident, Channel was driving west on N.E. 54th.Her daughters, Linda and Christy, were with her.At the same time, Mills was driving south on St. James in the left (easterly) lane.Anderson was driving south on St. James in the right (westerly) lane.Mills was slightly behind Anderson, so Anderson entered the intersection first.

As Anderson approached the intersection, something caused him to apply his brakes.He skidded 100-160 feet, then accelerated.He passed just in front of the Channel vehicle.

As Mills entered the intersection, he broadsided the Channel vehicle.Although he heard Anderson skidding, he never saw the Channel vehicle, and he never applied his brakes.Nor did Channel see him or apply her brakes.Christy Channel was killed, and Patricia and Linda Channel were seriously injured.

Channel sued Mills and Anderson.However, she voluntarily dismissed Anderson before trial.

The issue at trial was who had the green light.Patricia and Linda Channel said they did, and Mills and Anderson said they did.The jury returned a defense verdict, as well as a special interrogatory stating that Mills and Anderson had the green light.

Channel now assigns error to three rulings made by the trial court during trial.One involves the exclusion of evidence concerning Mills' speed.A second involves the admission of evidence from an unlicensed engineer.A third involves the exclusion of a photograph taken about a year after the accident.

I.

At trial, Channel wanted to argue that even if she ran the red light, Mills was speeding, and that but for his speed, he could have avoided the collision.Thus, she called, out of the presence of the jury, an accident reconstructionist named Keith M. Cronrath.Cronrath assumed that a reasonable person driving south on St. James would have been travelling the speed limit, 35 mph.He calculated Mills' speed "at most probably 51 miles per hour at impact".²He said that Mills' "cone of vision" would have extended 20 degrees to the east, ³ and that Mills could have seen Channel's car when Mills was 94 feet north of the point of impact.At that point, he said, Channel's speed was "at most probably 24 miles per hour", ⁴ and Channel would have been 43-45 feet east of the point of impact.Opining that it was proper to allow Mills 1.75 seconds of "reaction time", ⁵he testified that if Mills had been travelling 35 mph instead of 51 mph,

the vehicles would have cleared.In actuality, at that point you wouldn't even need to brake.They'd clear without braking.

Report of Proceedings, 1/14/92at 51.The trial court excluded the offer on the ground that it was not relevant to the issue before the jury.

The question is whether, and when, a favored driver's speed should be deemed a "proximate cause" of a collision.⁶The question supposes a favored driver who has the right of way but is speeding; a disfavored driver, pedestrian or cyclist who invades the favored driver's right of way; and an ensuing collision.Thus, the question can arise in a variety of contexts.In one, the favored driver is speeding at a controlled intersection, and a disfavored driver runs the red light or stop sign.E.g., Church v. Shaffer, 162 Wash. 126, 297 P. 1097(1931);Baker v. Herman Mut. Ins. Co.17 Wis.2d 597, 117 N.W.2d 725, 728-29(1962).In another, the favored driver is speeding at an uncontrolled intersection, and a disfavored driver fails to yield.E.g., Grobe v. Valley Garbage Service, Inc., 87 Wash.2d 217, 220, 551 P.2d 748(1976);Whitchurch v. McBride, 63 Wash.App. 272, 818 P.2d 622(1991), review denied, 118 Wash.2d 1029, 828 P.2d 564(1992);Marchese v. Metheny, 23 Ariz. 333, 203 P. 567, 569(1922).In a third, the favored driver is speeding when an oncoming driver turns left across, or swerves into, his lane.E.g., Bohnsack v. Kirkham, 72 Wash.2d 183, 194, 432 P.2d 554(1967);White v. Greyhound Corp., 46 Wash.2d 260, 264, 280 P.2d 670(1955);Smith v. Sherman Smith Trucking Co., 569 So.2d 347(Ala.1990).In a fourth, the favored driver is speeding when a disfavored driver, pedestrian or cyclist darts into the right of way from a curb or driveway.E.g., Chhuth v. George, 43 Wash.App. 640, 644, 719 P.2d 562, review denied, 106 Wash.2d 1007(1986);Theonnes v. Hazen, 37 Wash.App. 644, 646-48, 681 P.2d 1284(1984).In a fifth, the favored driver is operating a train, which is speeding, and the train's right of way is violated by a car or truck that fails to stop at a grade crossing.Dombeck v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 24 Wis.2d 420, 129 N.W.2d 185(1964);Barlett v. Kansas City Southern Ry. Co., 854 S.W.2d 396, 400(Mo.1993).In our discussion, we utilize authorities from all of these contexts.

Generally, "proximate" cause subdivides into cause in fact and legal cause.Christen v. Lee, 113 Wash.2d 479, 507, 780 P.2d 1307(1989);Baughn v. Honda Motor Co., 107 Wash.2d 127, 142, 727 P.2d 655(1986);Hartley v. State, 103 Wash.2d 768, 777, 698 P.2d 77(1985);Braegelmann v. County of Snohomish, 53 Wash.App. 381, 384, 766 P.2d 1137, review denied, 112 Wash.2d 1020(1989).A cause in fact is a cause but for which the accident would not have happened.Christen, 113 Wash.2d at 507, 780 P.2d 1307;Baughn, 107 Wash.2d at 142, 727 P.2d 655.A legal cause is a cause in fact that warrants legal liability as a matter of social policy.⁷Christen, 113 Wash.2d at 508, 780 P.2d 1307;Baughn, 107 Wash.2d at 146, 727 P.2d 655;Hartley, 103 Wash.2d at 779, 698 P.2d 77.A cause is "proximate" only if it is both a cause in fact and a legal cause.⁸Hartley, 103 Wash.2d at 777-81, 698 P.2d 77;⁹King v. Seattle, 84 Wash.2d 239, 249-50, 525 P.2d 228(1974);seeChristen, 113 Wash.2d at 507-08, 780 P.2d 1307.

Various cases illustrate how these principles of causation apply to a favored driver's excessive speed.In Berry v. Sugar Notch Borough, supra, a tree fell on the favored driver's car while he was driving at excessive speed.He sued the city for negligently failing to inspect and remove the tree.The city argued "that the speed was the immediate cause of the plaintiff's injury, inasmuch as it was the particular speed at which he was running which brought the car to the place of the accident at the moment when the tree blew down".The court rejected this argument, stating:

This argument, while we cannot deny its ingenuity, strikes us, to say the least, as being somewhat sophistical.That his speed brought him to the place of the accident at the moment of the accident was the merest chance, and a thing which no foresight could have predicted.The same thing might as readily have happened to a car running slowly, or it might have been that a high speed alone would have carried him beyond the tree to a place of safety.

Berry, 43 A. at 240.

In Baker v. Herman Mut. Ins. Co., supra, a southbound truck collided with an eastbound car at an intersection controlled by a stop sign for eastbound traffic.The plaintiff, a passenger in the car, argued that the truck driver should be found liable because he had been driving faster than the speed limit, which was 40 mph.The court said:

Even if the truck was traveling in excess of forty miles per hour, we are satisfied that its speed could not have been causal.This court has never held that excessive or unlawful speed is causal merely because it places the vehicle at a particular place at a particular time.Excessive speed is causal, however, when it prevents or retards the operator, after seeing danger, from slowing down, stopping, or otherwise controlling the vehicle so as to avoid a collision.

Baker, 117 N.W.2d at 728.According to the court, a reasonable person driving southbound would not have realized the car was not going to yield until a few feet before the collision, and the truck driver, as a matter of law, lacked opportunity to avoid the collision.

In Dombeck v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., supra, a car drove out in front of a train, and three people were killed or injured.The claimants argued the train had been travelling 65 mph when its legal speed limit was 40 mph.Concluding "that the trial court did not err in failing to submit a jury question as to the train's speed", Dombeck, 129 N.W.2d at 193, the court held:

Speed is not causal merely because the train arrived at the crossing the instant it did while if it had been going slower the car might have safely crossed ahead of it.

Dombeck, at 192.Quoting Baker, the court went on to say that even if the train had been going the legal speed limit, it could not have stopped or otherwise avoided the collision.

In Marchese v. Metheny, supra, the plaintiff's southbound...