Derheim v. N. Fiorito Co.

• Decision Date: 14 January 1972
• Docket Number: No. 41802,41802
• Citation: 80 Wn.2d 161,492 P.2d 1030
• Parties: Lawrence DERHEIM, Respondent, v. N. FIORITO CO., Inc., a Washington Corporation, Appellant.
• Court: Washington Supreme Court

Page 161

80 Wn.2d 161

492 P.2d 1030

Lawrence DERHEIM, Respondent, v. N. FIORITO CO., Inc., a Washington Corporation, Appellant.

No. 41802.

Supreme Court of Washington, En Banc.

Jan. 14, 1972.

Knapp & O'Dell, Hugh A. Knapp, Camas, Dusenbery, Martin, Bischoff & Templeton, Robert Glasgow, Portland, Or., for appellant.

Boettcher, La Londe, Kleweno, Lodge & Ladley, John L. La Londe, Vancouver, for respondent.

HUNTER, Associate Justice.

The plaintiff, Lawrence Derheim (respondent), recovered a jury verdict for personal injuries incurred in a collision with a dump truck owned by defendant, N. Fiorito Company, Inc. (appellant), and operated by defendant's employee. Defendant's appeal to Division II of the Court of Appeals was certified to this court. Specifically, the so-called 'seat belt defense' is a principal issue in the case, and as this court has not addressed itself to the appropriateness of this defense in automobile litigation, the Court of Appeals concluded that a fundamental issue of broad public interest is presented.

The facts are as follows. On June 6, 1968, defendant construction company was engaged in performance of a highway improvement contract on a section of Interstate Highway 5 from Burnt Bridge Creek north to the Ridgefield junction, a distance of approximately 14 miles. The actual work was being performed by the defendant north of the 134th Street exit, approximately five miles north of Vancouver, Washington. Trucks were being loaded with dirt at a point approximately one mile from the 134th Street off ramp, and were then directed to proceed south along Interstate 5 to the off ramp, down this two-lane ramp roadway, under Interstate 5 for several hundred feet at which point they were to turn left across the end of two lanes of old Highway 99 (which two lanes joined the two-lane off ramp at that point), and across 15 feet of grass median to a parallel on ramp. At that point they turned north on the on ramp for approximately 600--800 feet to a dump area.

At approximately 1:20 in the afternoon, plaintiff, driving his 1959 Chevrolet in a southerly direction on Interstate 5, proceeded down the off ramp behind defendant's dump truck at a lawful rate of speed. Just north of the underpass, a sign stating 'End of Construction' was erected facing southbound traffic. The facts are in dispute as to whether two additional signs (one on each side of the roadway) stating 'Truck Crossing' were in place south of the underpass and approximately 500 to 600 feet north of the impact area.

The impact occurred when plaintiff, overtaking the defendant's truck, struck the left front of defendant's truck which was engaged in a left-turn maneuver preparatory to crossing the two lanes of old Highway 99 to reach the on ramp. There seems to be no dispute but that defendant's truck commenced its left turn from the right lane, swinging over to the right-hand shoulder of the road and back across both lanes to the left, or inside lane, at which point the impact occurred. The testimony conflicts as to whether or not the truck's left turn signal was on. Plaintiff received a fracture of his right kneecap and injury to his mouth.

Defendant assigns error to the giving of numerous instructions based upon the rules of the road, and the failure to instruct, under RCW 46.61.030 as it existed prior to amendment in 1969, that the rules of the road were inapplicable and only ordinary care need be exercised.

In particular, the court, by appropriate instructions, advised the jury that it is unlawful to turn from a direct course of travel or to move to the right or left upon a roadway unless such movement can be made with safety, (RCW 46.61.140(1) and 46.61.305(1)); that a driver must look to the rear prior to signaling for a turn to ascertain that such a turn can be made with safety, (Socony Mobil Corp. v. Forbes, 64 Wash.2d 369, 391 P.2d 971 (1964)); that one driving on a divided highway may not cross the divider or dividing space unless directed or permitted by official control devices or police officers, (RCW 46.61.150); that before turning, the operator of a motor vehicle must signal his intention to turn not less than 100 feet prior to commencement of turn, (RCW 46.61.305(2)); and that one intending to turn from a two-lane one-way roadway must approach the intended point of left turn in the extreme left-hand lane, (RCW 46.61.290(3)).

If the rules of the road apply, the instructions given were correct. If not, defendant's proposed instructions, based upon RCW 46.61.030, and providing for a duty of ordinary care only, should have been given. The wording of RCW 46.61.030 in effect at the time of the accident is as follows:

Unless specifically made applicable, the provisions of this chapter except those contained in RCW 46.61.500 through 46.61.520 shall not apply to persons, teams, motor vehicles and other equipment while actually engaged in work upon the surface of a highway but shall apply to such persons and vehicles when traveling to or from such work.

This statute, by its terms, provides an exception to the rules of the road applicable to vehicular traffic on the roads and highways, allowing highway construction and maintenance work to proceed without public vehicular interference. In using the expression 'work upon the surface of a highway (or road)' and in excepting therefrom travel to and from the work area, it is apparent that the legislature was concerned with the movement of equipment and vehicles within the construction site area but was not excepting traffic traveling to and from the construction site. Here the vehicular traffic departing Interstate 5 on the 134th Street off ramp, was advised that they were leaving the construction area by the sign 'End of Construction'. Under these circumstances, the presence or absence of 'Truck Crossing' signs further down the highway, with their dubious effectiveness in warning motorists that some 500 to 600 feet beyond, a truck traveling in the right-hand lane might be expected to turn abruptly broadside across the left-hand lane, would not tend to establish exemption from the rules of the road under the statutory provision.

With regard to the possible superfluity of the trial court's instruction No. 13 ¹, set forth in footnote below and based upon RCW 46.61.295, we note that while the defendant would have us interpret this so-called U-turn statute as applying only when one changes direction in the same roadway, the harm or danger which this statute is concerned with is equally existent in a change of direction maneuver such as was attempted here. The court also takes judicial notice that 'No U-Turn' signs are posted along divided portions of Interstate 5 prohibiting vehicles from reversing direction by crossing the grass divider from one roadway to another. The truck driver testified that his turn maneuver was one continuous turn to the left, as sharp as the truck turning radius would permit, so as to proceed in the opposite direction on the adjoining on ramp. We cannot see how the jury could have been misled by this statute and accordingly find no error in the giving of instruction No. 13.

While principally taking the position that the rules of the road were not applicable, the defendant also assigns error to the trial court's refusal to instruct the jury that a driver turning to the left may lawfully use such portion of the highway as may be necessary to make an intended left turn. Defendant bases this contention upon a rule of the road, RCW 46.61.290(3), as follows:

Left turns on other than two-way roadways. At any intersection where traffic is restricted to one direction on one or more of the roadways, the driver of a vehicle intending to turn left at any such intersection shall approach the intersection in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle and after entering the intersection the left turn shall be made so as to leave the intersection, as nearly as practicable, in the left-hand lane lawfully available to traffic moving in such direction upon the roadway being entered.

Defendant misinterprets the statute. The accident site herein was not an intersection, and any degree of variance in making a turn is allowed with reference to the roadway being entered rather than the roadway from which the turn is commenced.

We therefore turn to the principal issue for consideration in this case. This issue was presented to the trial court in the following manner. Shortly before the trial commenced, defendant filed an amended answer raising the issue of contributory negligence on the part of the plaintiff for failure to wear an available seat belt and to sound the horn. The trial court allowed the amendment insofar as the horn was concerned, but denied the portion relating to the seat belt issue. In addition the trial court ruled, on plaintiff's motion in limine, that during the trial the defendant was prohibited from making any reference to plaintiff's failure to wear a seat belt. These pretrial rulings are assigned as errors. Specifically, defendant asserts that the plaintiff's failure amounted to contributory negligence, or in the alternative, that evidence should have been admitted in mitigation of damages or in proof of an avoidable consequence.

By way of offer of proof, defendant offered plaintiff's admission that his 1959 Chevrolet was equipped with seat belts and that he was not wearing one at the time of the accident. The defendant offered testimony of Dr. William Snell, a physician and surgeon in charge of the Department of Orthopedics at the University of Oregon Medical School, to the effect that plaintiff's knee injury would not have been sustained if his seat belt had been properly fastened. In response to a hypothetical question which assumed the relevant facts, including the use of a properly buckled seat strap, the doctor testified as follows A. Fine. Then my opinion is that he would...