Clevenger v. Fonseca

• Decision Date: 05 November 1959
• Docket Number: No. 34721,34721
• Citation: 55 Wn.2d 25,345 P.2d 1098
• Court: Washington Supreme Court
• Parties: Clifford CLEVENGER and Velma Clevenger, his wife, Respondents, v. Lynden F. FONSECA, Appellant.

Page 25

55 Wn.2d 25

345 P.2d 1098

Clifford CLEVENGER and Velma Clevenger, his wife, Respondents, v. Lynden F. FONSECA, Appellant.

No. 34721.

Supreme Court of Washington, En Banc.

Nov. 5, 1959.

Metzger, Blair & Gardner, Tacoma, for appellant.

Parker & Borawick, Midway, for respondents.

HUNTER, Judge.

This is an appeal from a judgment on a jury verdict awarding damages to the plaintiffs (hereinafter referred to in the singular). The action arose from a rear-end automobile collision at approximately 2:30 o'clock on the afternoon of April 3, 1957, on state highway No. 99, about four miles north of Tacoma. The road was a fourlane divided highway with a surfaced shoulder of an additional eight foot width. About three hundred yards to the rear of the scene of the accident was the crest of a hill. The road was dry and visibility was clear. Velma Clevenger, the plaintiff wife, testified that on that afternoon she was driving in a southerly direction in her 1951 Ford automobile from her place of employment to her home in Tacoma. In passing an auto transport truck on the crest of the hill, she noticed a school bus ahead of her giving a directional signal and pulling to the side of the road; that she slowed her vehicle and gave an arm signal as she approached; that she remained in the inside lane while coming to a stop to give the transport truck, which she passed, room in which to stop. As she slowed her vehicle she observed two red blinker lights at the top of the bus and a stop sign signal extended from the left side. In addition, she saw two lighted brake lights and a lighted directional light; that her brake lights were lighted while she remained stopped waiting for the children to be discharged from the bus. At the time, the front end of her car was to the left and about even with the back of the bus. While in this position, her car was struck in the rear by a car operated by the defendant Lynden F. Fonseca. The evidence further discloses that the bus driver brought the bus to a stop, partially off the paved portion of the roadway onto the shoulder, for the purpose of discharging two school children. He testified that in addition to stop and blinker lights on the rear of the bus there was an 18 1/2 by 24 inch sign with the lettering 'Unlawful to pass school bus when loading or unloading children'; that just before hearing the squeal of brakes, prior to the collision, the two passengers had been discharged but he had not closed the door; that it normally takes not more than thirty seconds to discharge two passengers.

The defendant, a citizen of Canada, testified that while traveling in a southerly direction, he passed a large truck at the crest of the hill and saw children being discharged from a school bus; that he saw no stop signal or flashing lights on the bus and assumed there was no requirement to stop after the children had alighted; that he observed Mrs. Clevenger's car between six to eight hundred feet ahead, which appeared to be moving, astride the white line between the inner and outer lanes; that when he was within two hundred fifty feet from the bus he suddenly realized that her car was in the act of stopping and he immediately applied the brakes, but failed to bring his car to a stop in time to avoid the collision. Defendant's car left heavy skid marks of one hundred feet in length. From the force of the impact, the Clevenger car was shoved one hundred fifty to two hundred feet down the road. As a result of the collision, plaintiff Mrs. Clevenger sustained serious injuries for which she seeks recovery, together with loss of earnings hospital and medical expenses, drug expenses, and damages to her car in the amount of $50. At the conclusion of the trial, the jury awarded damages to the plaintiff in the sum of $27,500. Judgment having been entered upon the verdict by the trial court, the defendant appeals.

The appellant makes ten assignments of error which we will consider in order. Error is assigned to the trial court's failure to give appellant's proposed instruction setting forth the requirements of RCW 46.48.290 relative to parking. This assignment is without merit. The statute relates to voluntary parking along public highways and has no relation to involuntary stopping in the arteries of traffic, as in the instant case. The statute was so construed in the recent case of Larson v. Stadelman Fruit, Inc., Wash.1958, 332 P.2d 52, which is controlling here.

The appellant's second and third assignments of error relate to the failure of the court to give appellant's proposed instructions setting forth all the requirements of RCW 46.48.140 relative to stopping behind a school bus discharging passengers, and in giving instruction No. 15.

Appellant's proposed instruction in the language of the statute was as follows:

'The statutes of the State of Washington provide in part as follows:

"It shall be unlawful for any person operating a motor vehicle in the same direction as a school bus upon a multiple-lane public highway to fail to bring such vehicle to a complete stop at least twenty feet away and on the approach to any school bus on or off the roadway displaying such stop signal and remain standing until the same is released. Compliance with the above stopping provisions of this section shall not relieve any motor vehicle operator of the further duty to exercise reasonable care in approaching or passing any school bus."

Instruction No. 15 given, reads as follows:

'You are instructed that the laws of the State of Washington require every person operating a motor vehicle upon a multiple lane public highway to bring his vehicle to a stop when approaching any school bus stopped on his right side on or off the roadway, which is displaying a stop sign and flasher signal lamps, and to remain stopped until the stop sign is released and the flasher lamps turned off.'

Appellant objects to the limiting of the phrase 'complete stop' to 'stop.' This is a distinction without a difference. Appellant's chief objection, however, is to the failure of the court's instruction to include the provision requiring the operator of a motor vehicle to 'stop at least twenty feet away' on the approach to a school bus, under the conditions set forth in the statute.

It is of course negligence per se to operate a vehicle without complying with the positive requirements of a statute or ordinance. The law is equally clear that there is no liability for such negligence unless an injury is sustained by a third person, which was proximately caused by the act of negligence in violation of the statute. White v. Kline, 1922, 119 Wash. 45, 204 P. 796; Perren v. Press, 1938, 196 Wash. 14, 81 P.2d 867; Wheaton v. Stuck, 1949, 34 Wash.2d 725, 209 P.2d 377. There was a complete absence of proof of such a causal relation in this case. The collision into the rear of the respondent's car by the appellant's car was not in any way related to a violation of this statute by the respondent's failure to stop twenty feet behind the school bus. The twenty-foot stopping provision of the statute was further inapplicable under the facts of this case, in that it was intended to protect school children being discharged from school buses and not operators of vehicles approaching from the rear. The rule is well settled that violation of a statute is not negligence per se except as to persons within the class intended to be protected by the statute. Erickson v. Kongsli, 1952, 40 Wash.2d 79, 240 P.2d 1209.

The trial court did not err in refusing appellant's instruction and in giving instruction No. 15 in lieu thereof.

Appellant's fourth assignment of error was to the court's giving instruction No. 14, which reads:

'If you find that the plaintiff was guilty of negligence which had terminated prior to the accident, leaving plaintiff in a position of peril from which she could not extricate herself by the exercise of reasonable care, and that the defendant either saw such peril or, by the exercise of reasonable care, should have seen it in time to have avoided the accident by the exercise of reasonable care, the law requires the defendant to avail himself of the last clear chance to avoid the accident. If he failed to do so, the defendant would be liable for damages suffered by plaintiff as a result of such accident, notwithstanding plaintiff's negligence.'

The instruction covers the second phase of the last clear chance doctrine. We again stated the doctrine in the recent case of Sinclair v. Record Press, Inc., 1958, 52 Wash.2d 111, 323 P.2d 660, 663, quoting therein from Klouse v. Northern Pac. R. Co., 1957, 50 Wash.2d 432, 312 P.2d 647, as follows:

"* * * The last clear chance rule, as applied in Washington has two phases. In the one, the plaintiff's negligence may continue up to the time of the injury if the defendant actually sees the peril; in the second, the plaintiff's negligence must have terminated or culminated in a situation of peril from which the plaintiff could not by the exercise of reasonable care, extricate himself if the defendant did not actually see the peril, but in the exercise of reasonable care should have seen it. * * *"

Applying the second phase of the doctrine to the facts of this case, it is clear from the evidence that the respondent's car and the school bus were in full view of the appellant for a distance of between six to eight hundred feet prior to the collision. There was direct testimony in the record that respondent had come to a stop long enough for the bus driver to discharge two passengers. The jury could thereby conclude that there was ample time for the appellant to ascertain the respondent's peril ahead and to have avoided the collision. From the evidence, the jury could further conclude that the respondent was waiting for the signal from the bus driver to proceed when her car was struck; that she was not aware of her peril, nor would she, as a prudent person, have known of her peril in time to...