Fazio v. Eglitis

• Decision Date: 01 October 1959
• Docket Number: No. 34724,34724
• Citation: 54 Wn.2d 699,344 P.2d 521
• Parties: Antonio FAZIO, Appellant, v. Juris EGLITIS, Respondent.
• Court: Washington Supreme Court

Page 699

54 Wn.2d 699

344 P.2d 521

Antonio FAZIO, Appellant, v. Juris EGLITIS, Respondent.

No. 34724.

Supreme Court of Washington, Department 2.

Oct. 1, 1959.

Edwin R. Johnson, Tacoma, for appellant.

Carnahan, Gordon & Goodwin, Tacoma, for respondent.

WEAVER, Chief Justice.

Plaintiff appeals from a judgment of dismissal entered after the court sustained defendant's challenge to the sufficiency of plaintiff's evidence.

We are required to interpret the evidence, and all inferences that can reasonably be drawn therefrom, in the light most favorable to plaintiff. Fink v. Dixon, 1955, 46 Wash.2d 794, 285 P.2d 557, and cases cited.

This is an action for damages resulting from an automobile collision that occurred at the intersection of South 21st and Canal streets in Tacoma, between ten and eleven p. m.

South 21st street extends from east to west; Canal street, an arterial, extends from north to south. From a large-scale drawing introduced in evidence, the following appears: South 21st street is thirty feet wide; commencing at points fifty feet east of the east curb line of Canal street, as extended across the intersection, the north and south lines of south 21st street fan north and south so that, at the junction of the two streets, south 21st street is approximately one hundred and thirty feet wide; a stop sign on the north side of south 21st street is located approximately fifty feet east of the east curb line of Canal street.

At a point one hundred and fifty feet south of the intersection with south 21st street, Canal street becomes an elevated viaduct; the incline curves from south to southwest.

Plaintiff, driving west on 21st street, stopped his car approximately ten feet west of the stop sign, where he had an unobstructed view of the intersection and the top of the Canal street viaduct. He intended to make a left turn. Plaintiff looked to the left and saw the lights of defendant's car at the top of the viaduct incline, approximately four hundred and eighty feet from the intersection. He looked to the right, saw no traffic, and proceeded into the intersection.

At the moment defendant saw plaintiff's car, he applied the brakes and attempted to stop; he was unsuccessful. Skid marks made by defendant's car were found to measure one hundred and ten feet to the point of impact.

Plaintiff testified that when the cars were about one hundred and fifty feet apart

'* * * I had sensed this car--coming at a high speed, when I tromped on my throttle and attempted to get off the road as quickly as possible without trying to make a left turn * * *

* * *

* * *

'All I could hear was brakes squealing on the roadway.'

The front of plaintiff's car had crossed the centerline when defendant's car struck the left rear fender and came to a stop forty or fifty feet from the point of impact. Plaintiff testified that defendant's speed was 'at least sixty miles an hour,' although he had no means of estimating the speed of defendant's car when he first saw it at the top of the viaduct incline. The speed limit on the bridge is thirty miles per hour; on Canal street, it is twenty-five miles per hour.

The trial court held that plaintiff was chargeable with contributory negligence, as a matter of law, because (a) he failed to yield the right of way, and (b) he violated an ordinance of the city of Tacoma when he stopped approximately thirty to forty feet, instead of fifteen, from the curb line of the arterial street.

Plaintiff (appellant) contends (a) that he is entitled to have the jury pass on the question of whether he was deceived by defendant's speed; and (b) that the Tacoma ordinance is in conflict with the state motor vehicle code.

It is apparent that plaintiff was the disfavored driver, for he was entering an arterial highway.

The statute requires that

'The operator of a vehicle shall stop as required by law at the entrance to any intersection with an arterial public highway, and having stopped shall look out for and give right of way to any vehicles upon the arterial highway simultaneously approaching a given point within the intersection, whether or not his vehicle first reaches and enters the intersection: * * *' RCW 46.60.170

In Martin v. Hadenfeldt, 1930, 157 Wash. 563, 567, 289 P. 533, 535, this court interpreted a similar statute. The court said:

'If two cars collide within the intersection, then they were simultaneously approaching a given point within the intersection, within the meaning of the statute, unless

'4. The driver on the left [the disfavored driver] assumes and meets the burden of producing evidence which will carry to the jury the question of fact as to whether or no the favored driver on the right so wrongfully, negligently, or unlawfully operated his car as would deceive a reasonably prudent driver on the left and warrant him in going forward upon the assumption that he had the right to proceed.'

When will an issue, under 'rule four' of the Hadenfeldt case, become a question of law for the court to decide?

This question was answered in Gavin v. Everton, 1944, 19 Wash.2d 785, 789, 144 P.2d 735, 738:

'We have no other rule than that it is a question of law only when it can be said that reasonable minds could not differ on the issue. The particular facts in each case must control that question. This must necessarily be so since, if we say that it is always a question of law to determine when the disfavored driver falls under rule four, it would be tantamount to striking the function of the jury completely out of rule four. On the other hand, if we say that an issue under rule four is always and invariably a question for the jury, it would be the equivalent of saying that facts could not exist, so extreme in nature that it could be said, as a matter of law, that all reasonable minds must agree. Neither of these positions are sound. See Billingsley v. Rovig-Temple Co., 16 Wash.2d 202, 133 P.2d 265.' (Italics ours.)

In Pasero v. Tacoma Transit Co., 1949, 35 Wash.2d 97, 211 P.2d 160, this court held that a disfavored driver is entitled to have an instruction given if the trial court can determine from the evidence that reasonable minds might differ as to whether the disfavored driver was deceived.

A disfavored driver has the right to assume that a favored driver, on an arterial highway, will not travel in excess of the legal rate of speed, unless, of course, the disfavored driver knows, or should know, that the favored driver is approaching at an excessive rate of speed. Peerless Food Products Co. v. Barrows, 1957, 49 Wash.2d 879, 307 P.2d 882, and cases cited; Pyle v. Wilbert, 1940, 2 Wash.2d 429, 98 P.2d 664, and cases cited. Deception presupposes a situation where the disfavored driver sees the favored vehicle and has the opportunity to make a choice. Hauswirth v. Pom-Arleau, 1941, 11 Wash.2d 354, 119 P.2d 674.

Under the plaintiff's evidence, the jury would be entitled to find (a) that before entering the intersection the plaintiff stopped at a point where he could observe traffic at the intersection and on the arterial highway; (b) that he saw defendant four hundred and eighty feet away--a distance (equal to more than one and one half average city blocks) which, at the legal rate of speed, would require more than thirteen seconds to traverse (if our arithmetic is correct); (c) that defendant was traveling at an illegal speed, as indicated by one hundred and ten feet of skid marks made by his car; and (d) that there was nothing to indicate to plaintiff (the disfavored driver) that defendant (the favored driver) was not traveling within the legal speed limit.

This evidence is sufficient to take

'* * * to the jury the question of fact as to whether or no the favored driver * * * so wrongfully, negligently, or unlawfully operated his car as would deceive a reasonably prudent driver * * * and warrant him in...