Ferrell v. Baxter, 1041

• Decision Date: 21 April 1971
• Docket Number: No. 1041,1041
• Citation: 484 P.2d 250
• Parties: Joan M. FERRELL et al., Appellants, v. Opal V. BAXTER et al., Appellees.
• Court: Alaska Supreme Court

Page 250

484 P.2d 250

Joan M. FERRELL et al., Appellants, v. Opal V. BAXTER et al., Appellees.

No. 1041.

Supreme Court of Alaska.

April 21, 1971.

Lloyd I. Hoppner, Fairbanks, for appellants.

Charles J. Clasby, Fairbanks, for appellees Melvin S. Graves and Sea-Land, Inc.

Before BONEY, C. J., and DIMOND, RABINOWITZ, and CONNOR, JJ.

OPINION

CONNOR, Justice.

Among other things, this case presents important questions in the law of torts.

At about 11:00 a. m. on February 10, 1966, at Mile 351.2 on the Richardson Highway, approximately 12 miles south of Fairbanks, Alaska, a collision occurred between an automobile driven by Joan Ferrell and a Mack truck owned by Sea-Land, Inc., and driven by Melvin S. Graves.

Mrs. Ferrell, a housewife, had lived in Delta Junction, Alaska, since 1960, and had driven north to Fairbanks on the average of once a month. On the date of the accident, Mrs. Ferrell, her daughter Linda, and Mrs. Baxter, a friend, set out for Fairbanks in Mrs. Ferrell's 1961 Mercury Montego automobile to do some errands. Mrs. Ferrell drove; Mrs. Baxter sat beside her in the front seat; and Linda sat behind them in the center of the rear seat. Linda does not remember that the windshield wipers were on; however, the heater was operating. The three women had their coats off, were relaxed, and chatted to pass the time during the long drive.

Melvin S. Graves was a truckdriver of considerable experience. He had driven in Alaska for twelve years for various trucking companies. In all parts of the state throughout his working life, he had handled semi-trucks and trailers similar to the vehicle involved in the accident. On February 10, 1966, he was driving a 1960 Mack tractor and pulling a falt-bed Fruehauf trailer. ¹ Graves was bound south from Fairbanks for the U.S. Army's Fort Greeley with his load. From there he planned to continue on to Anchorage. He was quite familiar with the route, for he made the Anchorage-Fairbanks run on the average of twice a week.

The road was generally good, although ice made it slippery in spots. The yellow line down the center of the road was visible only occasionally. The sunless sky was overcast; the temperature was about 0 F.; and it was not snowing at the time of the accident, although snow began falling soon afterwards.

The Richardson Highway at Mile 351.2 curves from a west-northwesterly direction to a northwesterly direction in the space of 451.10 feet. The highway in this right-hand curve is tipped or 'supered' eight degrees to the inside. The driving lane is about ten feet wide. Numerous trees and bushes, set 10 to 15 feet back from the pavement, line the roadway.

On the date of the accident the hardtop at Mile 351.2 was covered with ice and there was some snow on the pavement. The yellow line indicating the center of the highway was partially worn away and in need of repainting. It was also partially obscured by ice and snow. However, the traffic lanes were visible because numerous vehicles had packed the snow with prints of their passage. Because of the tendency of previous drivers to 'cut' the curve, the traffic lanes had shifted about two feet to the northeast or inside. The obscured yellow line thus no longer represented the apparent center of the roadway.

As Graves entered the curve, he slowed down slightly from his prior speed which was thirty to forty-five miles per hour. He testified that he was within eight inches of the snow berm on his side of the road. This berm was a foot to a foot and one-half high. Graves was certain of these facts because, when the yellow line was not visible, he customarily judged his position on the roadway by his distance from the berm. In a ten-foot-wide lane, an eight-foot-wide vehicle eight inches from the berm would have sixteen inches leeway in the center of the road. Graves noticed no traffic in front of him or approaching him until he was just about to enter the curve.

At this time he first saw Mrs. Ferrell's automobile about 300 feet away, approaching from the south. His visibility was good; he could see past Mrs. Ferrell's car, although she was already halfway into the curve. Even though the yellow line was not visible, Graves testified that he knew Mrs. Ferrell was in the middle of the road, 'just right about on the yellow line,' straddling it with her left front wheel a little over on his side. She also appeared to him to be going thirty-five to forty miles per hour, too fast to negotiate the curve safely, due to his presence and her position so far over in the center of the road. ² Graves' impression was that Mrs. Ferrell would hit the cab or go underneath the trailer because she was going too fast to control her car, which was in his lane.

By this time Mrs. Ferrell was well into the curve. She apparently applied her brakes, but only succeeded in locking her wheels. At the same time she apparently attempted to turn her wheels, but to no avail. The net result was that she continued to slide striaght into Graves' truck although her wheels were turned and locked.

Graves testified that he turned his truck to the right into the snow to get off the highway quickly and enable Mrs. Ferrell to pass him safely. He did not touch his brakes at all as he drove off the road, through the snow berm and into the bushes. He saw her pass as he went off into the snow, but immediately thereafter snow flew up, covering the windshield and totally obscuring his view. He felt the impact of Mrs. Ferrell's car hitting the left front wheels of the trailer. The trailer wheels went up over the hood of the car. The right wheels of his truck caught in the ditch by the side of the road and the truck turned over, finally coming to rest about 126 feet past the point of impact.

Mrs. Ferrell was traveling thirty-five to forty miles per hour when she first saw the truck just after she entered the curve. Mrs. Baxter testified this speed was moderate and that the automobile was not over the center line. The ladies were taling at the time but, nevertheless, Mrs. Baxter felt Mrs. Ferrell was alert and keeping her attention on the business of driving. Although Linda was not paying particular attention to the road, she, too, believed the car was not over the center line.

From the first moment Mrs. Ferrell saw the truck, she had a clear view of it up until the moment of impact. The lower part of the wheels and road surface alone were hidden by the low snow berm. Mrs. Ferrell testified that the truck seemed to be over the center line on her side of the road. The snow berm was right up to the edge of the pavement. There was no room for the car to pass to the right of the truck on the road. Therefore, Mrs. Ferrell attempted to turn the car to the right and go into a snowbank.

At about this time when the truck was three or four car lengths away, Mrs. Baxter first saw it. The truck appeared to be going too fast and taking up too much of the curve to permit them to get by safely because it was in their lane. She saw Mrs. Ferrell try to turn to the right to avoid a collision.

Although she had no recollection of doing so, Mrs. Ferrell testified she 'must have' unintentionally put her foot on the brake, which threw her car into a slide and thus prevented her from driving off the road.

Rudy Voigt, a witness for Mrs. Ferrell, placed the point of impact at the center of the road. A State Trooper Sgt. Lowell Janson, a witness for Mr. Graves and Sea-Land, placed the 'point of maximum effect' several feet inside the southbound lane.

As a result of the collision Mrs. Ferrell and Mrs. Baxter suffered serious personal injuries. Linda Ferrell suffered minor injuries. The Ferrell automobile suffered extensive damage. The truck suffered minor damage.

Mrs. Baxter sued Mrs. Ferrell, Mr. Graves and Sea-Land, Inc., for her personal injuries. Her husband sued for his derivative claims. Mrs. Ferrell cross-claimed against Mr. Graves and Sea-Land for her personal injuries. Her husband sued Graves and Sea-Land for his derivative Losses. Linda Ferrell sued Graves and Sea-Land for her personal injuries. Sea-Land cross-claimed against Mrs. Ferrell for property damage to the truck. After a jury trial Mrs. Ferrell was found negligent. Mrs. Baxter was awarded $25,000 in damages. Mr. Baxter was awarded $2,000. Sea-Land was awarded $855.25. Mr. and Mrs. Baxter were awarded $3,550 in attorney's fees against Mrs. Ferrell. Mr. graves and Sea-Land, who maintained a common defense, were awarded attorney's fees of $7,100-$3,550 against Mrs. Ferrell and $3,550 against the Baxters.

Mr. and Mrs. Ferrell and Linda have appealed the judgment alleging numerous errors.

1. The Effect of the Violation of a Traffic Regulation.

Appellants objected to the trial court's giving Instruction No. 10, which stated:

'You are instructed that the law of the State of Alaska as it applies to this case is as follows:

'88. Drive on Right Side of Roadway-Exceptions.

(a) Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:

1. When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement;

2. When the right half of the roadway is closed to traffic while under construction or repair;

3. Upon a roadway designated and signposted for one way traffic.

(b) Upon all roadways any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right hand lane then available for traffic, or as close as practicable to the right hand curb or edge of the roadway, except when overtaking or passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection or into a private road or driveway.' (Alaska Administrative Code, Title 13, Section 88, Now Title 13, Section 104.31.)

'126. Basic Rule and Maximum Limits.

(a) No person shall drive a vehicle on a highway at a speed greater than is...