Flaks v. McCurdy

• Decision Date: 26 March 1964
• Docket Number: No. 37045,37045
• Citation: 390 P.2d 545,64 Wn.2d 49
• Parties: Max M. FLAKS and Frances Flaks, husband and wife, Appellants, v. Lincoln McCURDY, Respondent.
• Court: Washington Supreme Court

Page 49

64 Wn.2d 49

390 P.2d 545

Max M. FLAKS and Frances Flaks, husband and wife, Appellants, v. Lincoln McCURDY, Respondent.

No. 37045.

Supreme Court of Washington, Department 1.

March 26, 1964.

Tonkoff, Holst & Hopp, J. P. Tonkoff, Yakima, for appellants.

Halverson, Applegate, McDonald & Weeks, Alan A. McDonald, Yakima, for respondent.

HUNTER, Judge.

This is a rear-end automobile collision case. The plaintiff (appellants), Max M. Flaks and wife, and the defendant (respondent), Lincoln McCurdy, were traveling in the same direction on Highway No. 97, between Yakima and Ellensburg, on the afternoon of November 23, 1960. Snow, sleet and mist caused bad driving conditions and poor visibility. There were two or three inches of snow or slush on the highway. The defendant was following the plaintiff's at a distance of approximately 350 to 400 feet, traveling between 35 and 40 miles per hour. The plaintiffs proceeded around a very sharp turn disappearing from the defendant's view. They found several vehicles stopped on the highway. As the defendant followed the plaintiffs' car and it was again visible, the car was slowing down approximately 150 to 175 feet in front of the defendant. He failed to stop his car completely and collided into the rear of the plaintiffs' car causing $100 damage to the car and the personal injuries here complained of.

This case was tried twice in the trial court and in each case the jury returned a verdict in favor of the defendant. A new trial was awarded after the first trial because the court determined it had erroneously submitted the issue of contributory negligence to the jury. This issue was withdrawn in the second trial. This appeal is from the judgment entered upon the jury verdict in the second trial.

The plaintiff's assign error to the trial court's instructions on unavoidable accident and the emergency doctrine. They contend the following-car doctrine is controlling. Under that doctrine, which is firmly established in this state, the primary duty of avoiding a collision in a situation such as we have in the instant case rests upon the following driver. In the absence of an emergency or unusual conditions, the following driver is negligent if he runs into the car ahead. Tackett v. Milburn, 36 Wash.2d 349, 218 P.2d 298 (1950); Johnson v. Watson, 11 Wash.2d 690, 120 P.2d 515 (1941).

In the instant case there was evidence in the record which would justify the jury in finding unusual conditions. An unavoidable-accident instruction may be properly given when there is evidence to support a finding by the jury that there was no negligence on the part of either the plaintiff or the defendant. Blood v. Allied Stores Corp., 162 Wash.Dec. 185, 381 P.2d 742 (1963); Gaylord v. Schwartz, 46 Wash.2d 315, 281 P.2d 247 (1955); Rettig v. Coca-Cola Bottling Co., 22 Wash.2d 572, 156 P.2d 914 (1945). In Cooper v. Pay-N-Save Drugs, Inc., 59 Wash.2d 829, 371 P.2d 43 (1962), we said:

'* * * it is proper to give the instruction if there is affirmative evidence that an unavoidable accident occurred; stated negatively, it is error to give the instruction if there is no evidence of an unavoidable accident or if the only issue possible under the facts is that of negligence and contributory negligence. * * *'

Bennett v. McCready, 57 Wash.2d 317, 356 P.2d 712 (1960), is peculiarly applicable in the present case. It provides clear authority for an unavoidable-accident instruction. We said:

'* * * The slippery condition of the highway created a situation in which certain kinds of accidents could occur without fault due to the inherent dangers of driving upon it.

'We think, therefore, that appellants' assignment of error directed to the giving of instruction No. 16, which instructed upon unavoidable accident, is not well taken. A jury, under proper instructions, might very well have found that the dangerous condition of the highway caused an unavoidable accident. * * *'

Here there was evidence that driving conditions were slippery and dangerous. The giving of such an instruction is discretionary. Carraway v. Johnson, 63 Wash.Dec.2d 211, 386 P.2d 420 (1963). The trial judge did not abuse his discretion in giving the unavoidable-accident instruction.

Instruction No. 15 on emergency was also correctly given. An emergency instruction was approved in Bergstrom v. Ove, 39 Wash.2d 78, 234 P.2d 548 (1951), under facts similar to the facts in the instant case. In the Bergstrom case, a motorist's vision was obstructed by a hill, and as he came over the crest h...