Everest v. Riecken

• Decision Date: 13 May 1948
• Docket Number: 30472.
• Citation: 30 Wn.2d 683,193 P.2d 353
• Parties: EVEREST v. RIECKEN et ux.
• Court: Washington Supreme Court

193 P.2d 353

30 Wn.2d 683

EVEREST v. RIECKEN et ux.

No. 30472.

Supreme Court of Washington

May 13, 1948

Department 1

Rehearing Denied June 24, 1948.

Action by Jack Everest against Harvey Riecken and Bernice I Riecken, his wife, to recover for injuries sustained by plaintiff in a collision between plaintiff's bicycle and defendants' automobile. From a judgment of dismissal, the plaintiff appeals.

Judgment affirmed.

Appeal from Superior Court, Snohomish County Charles R. Denney, Judge.

James Tynan, of Everett, for appellant.

John D MacGillivray, of Spokane, for respondents.

HILL Justice.

On the first of this case, it was dismissed on a motion for a directed verdict. The judgment of dismissal was reversed by this court and the case was remanded to the superior court with instructions to grant a new trial. Everest v. Riecken, 26 Wash.2d 542, 174 P.2d 762. At that time, the father and mother of Jack Everest, and his father as his guardian ad litem, were the plaintiffs (and appellants). Subsequently, Jack Everest became of age and was substituted as the sole plaintiff. On the second trial, the jury found for the defendants, and from a judgment of dismissal predicated thereon this appeal is taken.

As there is a detailed statement of the facts in the opinion above referred to, we will set forth only such facts as are essential to a consideration of the questions raised on this appeal.

The appellant's principal contention is that the following instruction on last clear chance should have been given:

'You are instructed that although the plaintiff [appellant] may have been guilty of negligence in operating his bicycle without a lighted head lamp, and although that negligence may in fact have contributed to the accident, yet if that negligence had culminated in a situation of peril from which the plaintiff could not extricate himself, and the defendant [respondent], in the exercise of reasonable care, should have seen the plaintiff in time to avoid injury, the plaintiff's negligence will not excuse the defendant, and the plaintiff is entitled to recover.'

The respondents' minor son, to whom we will hereafter refer as though he were the respondent, was driving an automobile north on a city street; the appellant was riding a bicycle south on that street. There was a car or cars parked on the west side of the street, and the appellant was hit while passing a parked car. The respondent may be assumed to have been negligent in driving on the west side of the center line of the street, in failing to keep a proper lookout ahead, and in exceeding the speed limit. The appellant was negligent in riding a bicycle at 10:15 p. m. without a lighted head lamp thereon. The respondent did not see the appellant and the appellant's negligence had not terminated; but the appellant argues that, even though his negligence had not terminated, it had culminated in a position of peril from which he could not extricate himself.

In Leftridge v. Seattle, 130 Wash. 541, 228 P. 302, 303, we said--and this statement has been often quoted as the Washington rule:

'Thus we have two different situations to which the last clear chance rule applies. 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, if the defendant did not actually see the peril, but by the exercise of reasonable care should have seen it.'

If this represented the final word in this state on the doctrine of last clear chance, the appellant's negligence not having terminated and the respondent not having seen him, the doctrine would have no application to the present case.

The appellant contends, in effect, that the second situation above referred to should read:

'* * * 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 by the exercise of reasonable care should have seen it.'

The appellant's contention is correct if the statement in Leftridge v. Seattle, supra, was intended, as it purports to be, as an approval and restatement of the rule laid down in Mosso v. E. H. Stanton Co., 75 Wash. 220, 134 P. 941, L.R.A. 1916A, 943.

Judge Mackintosh, who wrote the opinion in the Leftridge case, said:

'Going no farther back into the decisions than to Mosso v. E. H. Stanton Co., 75 Wash. 220, 134 P. 941, L.R.A. 1916A, 943, we find that case endeavored to clarify the last clear chance rule and define two separate conditions under which it was applicable, and the rule is announced as (1) that, where the defendant actually saw the peril of a traveler on the highway, and should have appreciated the danger and failed to exercise reasonable care to avoid injury, such failure made the defendant liable, although the plaintiff's negligence may have continued up to the instant of the injury, but (2) that, where the defendant did not actually see the peril of the plaintiff, but by keeping a reasonably careful lookout commensurate with the dangerous character of the agency and the locality should have seen the peril and appreciated it in time, by the exercise of reasonable care, to have avoided the injury, and failure to escape the injury results from failure to keep that lookout and exercise that care, the defendant was liable only when the plaintiff's negligence had terminated or culminated in a situation of peril from which the plaintiff could not, by the exercise of reasonable care, extricate himself.'

We have never construed the second division of the Washington rule as excluding the situation in which the plaintiff's negligence, though not terminated, has culminated in a situation of peril from which he could not, by the exercise of reasonable care, extricate himself.

In our recent case of Thompson v. Porter, 21 Wash.2d 449, 151 P.2d 433, 437, in which we reviewed at some length our holdings on the doctrine of last clear chance, it was said:

'Appellant further contends that the case should have been sent to the jury under the second division of the rule. Under that division, the defendant may be held liable under the doctrine of last clear chance, notwithstanding the negligence of the injured person and even if he did not see him, but should have seen his peril and appreciated it in time to have, by reasonable care, avoided the injury. But, under those circumstances, the defendant can only be held liable:

"* * * when the plaintiff's negligence had terminated or culminated in a situation of peril from which the plaintiff could not, by the exercise of reasonable care, extricate himself."

Being thus far in accord with the appellant's position so far as the extent of the doctrine is concerned, we come now to a consideration of its applicability to the facts in the present case. The appellant's argument that his negligence had culminated in a situation of peril hinges upon the assumption that, while the appellant was alongside the parked car, there was not sufficient room to avoid the oncoming car of the respondent and that, consequently, the appellant was inextricably trapped. It is clear that, until the appellant started to pass the parked car on his bicycle, he could at any moment have extricated himself from his position of peril by turning to his right; and, under such circumstances, his continuing negligence could not be said to have culminated in a position of peril from which he could not, with reasonable care, have extricated himself. Shea v. Yellow Cab Co., 184 Wash. 109, 49 P.2d 925; Steen v. Hedstrom, 189 Wash. 75, 63 P.2d 507; Thompson v. Porter, supra.

If we assume that, from the instant the appellant commenced to pass the parked car, he was inextricably trapped, we are confronted with the fact that he was hit Before he had passed the car. His inextricable peril was, therefore, limited to the fleeting moments that he was alongside the parked car. The inextricable peril arose and the danger struck within two ticks of a watch.

All of the cases cited by the appellant in which the last clear chance doctrine was held to be applicable because the plaintiff's negligence had culminated in a position of peril from which he could not extricate himself were cases where his position would have been apparent to the approaching driver, motorman, or engineer for an appreciable period of time had he been keeping a proper lookout. Nicol v. Oregon-Washington R. & Nav. Co., 71 Wash. 409, 128 P. 628, 43 L.R.A.,N.S., 174 (automobile stalled at a railroad crossing); Herrick v. Washington Water Power Co., ...