Danley v. Cooper

• Decision Date: 16 May 1963
• Docket Number: No. 36430,36430
• Citation: 62 Wn.2d 179,381 P.2d 747
• Court: Washington Supreme Court
• Parties: Donald P. DANLEY and Lerona Danley, his wife, Appellants, v. Preston A. COOPER and Cooper Northgate, Inc., Respondents.

Page 179

62 Wn.2d 179

381 P.2d 747

Donald P. DANLEY and Lerona Danley, his wife, Appellants, v.Preston A. COOPER and Cooper Northgate, Inc., Respondents.

No. 36430.

Supreme Court of Washington, Department 1.

May 16, 1963.

Colvin & Williams, John J. Keough Seattle, for appellants.

Brethorst, Fowler, Bateman, Reed & McClure, Roy J. Moceri, Seattle, for respondents.

HILL, Judge.

This is a rear-end collision case.The negligence of the defendants, ¹ whose panel truck ran into the rear of the plaintiffs' ² car, is conceded.The trial court held that on the agreed facts the plaintiff was, as a matter of law, contributorily negligent; and that, as a matter of law, the last clear chance doctrine did not apply, and entered a summary judgment of dismissal.

From this judgment, the plaintiff appeals, urging that the issues of her negligence, of proximate cause, and of last clear chance presented questions of fact for a jury.

The case comes before us on an agreed statement of facts and a record that might well be a model for the purposes of holding down the costs on appeal, pinpointing the issues, and excising the irrelevant.

It is agreed that the collision occurred on a four-lane highway, which was divided down the center by two yellow stripes more than 4 inches apart.It is concededly unlawful to cross such barrier stripes.³The plaintiff stopped her car in the inside-eastbound lane for the purpose of making a left-hand turn across the barrier stripes and the westbound lanes to her husband's service station, rather than proceeding a quarter mile further east to the nearest intersection where she could legally make a U turn and then return in a westbound traffic lane to the service station.At the time she stopped, there was nothing behind her and she had an unobstructed view to the rear for 800 feet.She remained in a stationary position for 'quite a while to permit a westbound funeral procession to pass on the other side of the barrier stripes.While so stopped, the defendants'panel truck crashed into her car.The defendants' driver admitted that he had been watching the funeral procession and not the road.

The plaintiff's contentions on the issues of her negligence and proximate cause are answered by our opinion in Guerin v. Thompson(1959), 53 Wash.2d 515, 335 P.2d 36.There, as in the instant case, the plaintiff had stopped his car in the inside lane preparatory to making an unlawful left turn across double-center-barrier lines and, while so stopped, was struck in the rear by defendant's vehicle.In that opinion we said:

'* * * the legislature has defined the standard of care which one must exercise in operating a motor vehicle upon divided four-lane arterial highways by RCW 46.48.290 ⁴ and 46.60.020[see note 3], and other statutory provisions ⁵ not here applicable.SeeGreen v. Flore, 1947, 28 Wash.2d 620, 183 P.2d 771;Swanson v. Gilpin, 1946, 25 Wash.2d 147, 169 P.2d 356.'53 Wash.2d at 520, 335 P.2d at 39.

Plaintiff argues that RCW 46.48.290 does not prohibit stopping on the highway, but is a parking statute and cites Kinney v. Bissell(1960), 55 Wash.2d 660, 349 P.2d 599;Clevenger v. Fonseca(1959), 55 Wash.2d 25, 345 P.2d 1098;Larson v. Stadelman Fruit, Inc.(1958), 53 Wash.2d 135, 332 P.2d 52.The rationale of those cases is inconsistent with our holding in Guerin; and, although the results can be readily justified, we now feel that our interpretation of the statute in those cases was erroneous.

A statute, if possible, should be construed to give effect to all the language used; ⁶ and it should be assumed that when the legislature said it was unlawful 'to stop, park or leave standing any vehicle,' under the conditions declared to be unlawful by RCW 46.48.290(see note 4), it meant by the inclusion of the word 'stop' something in addition to 'park' or 'leave standing' and was not merely repeating itself for emphasis.SeeNorthern Indiana Transit, Inc. v. Burk, 228 Ind. 162, 170, 89 N.E.2d 905, 908, 17 A.L.R.2d 572:

'* * * Under appellant's contention the term 'stop' would be mere surplusage in the act.Moreover, the dangers to the traveling public from stopping in an unreasonable manner may be just as serious as stopping a sufficient length of time to become parking.'

Moreover the legislative history of the statute supports this assumption.The original wording 'leave any vehicle standing,'⁷ was changed to 'park or leave standing,'⁸ and still later changed to 'stop, park or leave standing.'⁹

We find what we now regard to be a proper interpretation of the statute in 2A Blashfield, Cyclopedia of Automobile Law and Practice(Perm.Ed. 1951) § 1197 at 39:

'Under the usual statute against parking, stopping, or leaving standing, the prohibition includes a temporary halt, unless the stop is justified.Such an act may not involve 'parking' but it is 'stopping' or 'leaving standing.'The fundamental problem is one of justification. * * *'

This is not to say, of course, that all momentary stops are prohibited by the statute.For example, stops clearly required by the exigencies of traffic ¹⁰ permitted by statute, ¹¹ or made out of reasonable necessity because it would be hazardous to proceed on the intended course, are not within the purview of such a statute.See43 IowaL.Rev. 401(1958).

Applying this rule to the Larson and Clevenger cases, it is apparent that the stops in question were justified and, hence, not contributorily negligent.In Larson, the plaintiff who was rear-ended, had stopped because of the possibility of children coming around the rear end of a school bus which was headed in his direction and standing still.In Clevenger, the plaintiff, who was rear-ended, had stopped behind a school bus which was stopped partially off the road to discharge several school children.

In Kinney, if there was a stop it was without justification, but the plaintiff whose vehicle was struck from behind, contended that she had not stopped but had gradually decelerated to about 20 miles an hour.The jury obviously accepted her version, so that any discussion of the meaning of the statute was dictum under the circumstances.

Applying the rule we have just approved to the present case, it was negligence per se for the plaintiff to stop her car on the highway unless there was justification therefor.It is conceded that she stopped because she intended to make an illegal left turn across the center-barrier stripes.The plaintiff's counsel point out that she had not violated RCW 46.60.020 because she had not even started to cross the barrier stripes when her car was hit; and one cannot be negligent for merely intending to violate a statute.This we grant; but stopping for the purpose of violating a statute completely fails to supply an adequate justification for the stopping.

Nor is there any justification for stopping by the fact that other people violate the statute at that particular place, or that it is more convenient to violate the statute than to continue for a quarter of a mile to a place where a lawful left turn can be made.

Justification is here no matter for a jury; reasonable minds can find, at best, nothing more than the assumption of a calculated risk.The violation of the statute constitutes negligence per se; and the issue of proximate cause (whether that negligence became contributory negligence) was decided adversely to the plaintiff in Guerin v. Thompson, supra.

There remains for consideration the plaintiff's contention that the second phase of the doctrine of last clear chance ¹² is applicable.There is no evidence that defendants' driver actually saw the plaintiff's car in time to avoid the collision, and it is not contended that the first phase of the doctrine applies.Since defendants admit that their driver should have seen the plaintiff in time to avoid the accident, the only question is whether plaintiff's negligence had terminated or culminated in a situation of peril from which she could not, by the exercise of reasonable care, extricate herself.

Plaintiff was negligent per se in voluntarily stopping her car on a multilane highway in violation of RCW 46.48.290.Such negligence continued from the time she brought her vehicle to a stop until the collision and did not terminate.Likewise, she was not in a position of peril from which she could not extricate herself.Plaintiff did not see defendants' truck until she heard her son scream and saw it coming toward her in the rear-view mirror 'too close to do anything about it.'Had she not been oblivious to the danger created by the approach of defendants' vehicle until an instant before the impact, she could have extricated herself from her position of peril by driving down the highway or getting out of the way of the approaching vehicle.

We have consistently rejected the contention that one who is oblivious to his danger is, in effect, as unable to extricate himself as one who is physically unable to do so.In such a situation the plaintiff has an opportunity equal to that of the defendant to avoid the accident.SeeConklin v. City of Seattle(1961), 58 Wash.2d 189, 192, 361 P.2d 578, 580;Everest v. Riecken(1948), 30 Wash.2d 683, 193 P.2d 353;Thompson v. Porter(1944), 21 Wash.2d 449, 459, 151 P.2d 433, 438.

In Thompson v. Titus Motor Co. (1962), 160 Wash.Dec. 377, 374 P.2d 177, we referred to a statement from one of the late texts dealing with last clear chance.The statement is equally applicable here:

'* * * If an inattentive defendant negligently fails to see an inattentive (but not helpless)plaintiff, the case falls into the category where both plaintiff and defendant are negligently unaware of an impending peril; the plaintiff could have saved himself as long as defendant could have saved him.Under such circumstances, most American courts and the American Law Institute rule out last clear chance.2 Harper and James, Law of Torts 1252, § 22.13.'

The trial court properly concluded, as a matter of...