Frasch v. Leedom

• Decision Date: 27 June 1963
• Docket Number: No. 36133,36133
• Citation: 383 P.2d 307,62 Wn.2d 410
• Court: Washington Supreme Court
• Parties: Eldon FRASCH and Laura K. Frasch, husband and wife, Appellants, v. John LEEDOM and 'Jane Doe' Leedom, husband and wife, and Jeanette Leedom, Respondents, Morris Bush and Everett Salsberry, Additional Defendants.

Page 410

62 Wn.2d 410

383 P.2d 307

Eldon FRASCH and Laura K. Frasch, husband and wife, Appellants, v. John LEEDOM and 'Jane Doe' Leedom, husband and wife, and Jeanette Leedom, Respondents Morris Bush and Everett Salsberry, Additional Defendants.

No. 36133.

Supreme Court of Washington, Department 2.

June 27, 1963.

Rehearing Denied Aug. 29, 1963.

Sawyer, Griffin & Boyle, Lawrence M. Ross, Tacoma, for appellant.

Gordon, Goodwin, Sager & Thomas, Tacoma, for respondent.

HAMILTON, Judge.

Plaintiffs (appellants) appeal from an order granting defendants' (respondents') motion for judgment notwithstanding the verdict.

On September 18, 1959, at about 11:30 p. m., plaintiff Laura K. Frasch (hereafter referred to as if she were the sole plaintiff) and her teenage son were returning from a high school dance attended by her son. Plaintiff was traveling north on Pacific Avenue (also known as the Mountain Highway) in Pierce County, Washington. Pacific Avenue, in the vicinity in question, is a straight, fairly level, 60-mile an hour, four-lane highway, the north and southbound lanes being separated by double yellow lines. It had been raining and misting, the pavement was wet, the night was dark, and visibility was correspondingly affected. Several automobiles, returning from the school dance, were traveling north, some with their windshield wipers on, at speeds varying from 35 to 50 miles an hour. Approaching an unlighted intersection, at which she wished to turn west, plaintiff, traveling in the outside or easterly lane of travel, slowed down and prematurely turned sharply across the passing or inside northbound lane. A collision occurred between her vehicle and a northbound vehicle (hereafter referred to as the Salsberry vehicle) approaching in the passing lane. As a result of the collision, the Salsberry vehicle was disabled and came to rest headed north in the northbound passing lane. Its head and taillights remained on. Plaintiff's vehicle, still operable, came to rest headed south in the southbound lanes. Some words concerning fault were exchanged between the occupants of the respective vehicles, and from its position in the southbound lanes plaintiff drove her vehicle to the westerly shoulder of Pacific Avenue and parked it. Plaintiff and her son then returned on foot to the Salsberry vehicle, purportedly to render assistance, survey the damage, and exchange identification.

In the meantime, two automobiles, traveling behind plaintiff's vehicle in the outside northbound lane, stopped and parked off the highway north of the scene. The two occupants of the Salsberry vehicle alighted and the owner, thinking plaintiff had left the scene, requested the occupants of the first following vehicle to remain as witnesses. The occupants of the second vehicle walked to the front of the Salsberry vehicle, where plaintiff, her son, and the two occupants of the Salsberry vehicle were beginning to assemble, inquired of the Salsberry occupants about flashlights or flares, following which one left to notify the state patrol. The Salsberry occupants noticing headlights approaching from the south in both the outside and passing lanes, commented upon the potential danger thereof and commenced running toward the south in an effort to warn the approaching vehicles by waving and shouting. The plaintiff, at this time, was either just arriving or standing in midfront of the Salsberry vehicle observing the damage to the vehicle. She disclaims, under the stress of the moment, knowledge of impending danger, knowledge of who or how many persons were present, hearing the conversations about flashlights, flares or approaching vehicles, and hearing or seeing, until the last moment, any approaching vehicle.

Defendants' antomobile was the vehicle approaching in the passing lane. It was operated by 16-year-old Jeanette Leedom, who was returning from the school dance with several girl friends as passengers. It struck the rear of the Salsberry automobile causing it to run over and injury plaintiff.

An interval, variously estimated between a few seconds and 3 minutes, elapsed between collisions.

Defendants' vehicle, according to defendants' evidence, had, for some distance preceding the collision, been traveling at a speed of 40 to 50 miles an hour in the outside lane behind another vehicle driven by one Gary Justice. Approximately 1 1/2 to 2 1/2 blocks (600 to 900 feet) from the point of impact, the Justice vehicle slowed down, the driver having observed the confusion ahead. Defendant driver then turned into the inside lane and commenced passing the Justice vehicle. Thereafter, defendant driver noticed for the first time the taillights of the Salsberry vehicle. On both direct and cross-examination defendant driver explained her reaction substantially as follows:

'A. Well, when I first saw it I thought it was any ordinary car and as I got closer it looked like it was going slow, and then that's when I let my foot up off the accelerator. Then when I got closer I knew it wasn't going, that it had stopped, and naturally I proceeded to apply my brakes.'

A passenger in a vehicle traveling a few car lengths behind defendants' automobile estimated defendants' brake lights came on a distance of 150 feet before impact. The occupants of the Salsberry vehicle, who in their attempt to warn approaching traffic had reached a point 20 to 30 feet behind the disabled vehicle, estimated defendants' vehicle started skidding 40 to 60 feet south of them. A state patrol officer measured 48 feet of skid marks from the point of impact.

Three following vehicles experienced difficulty in avoiding further collisions.

Plaintiff, alleging negligence, instituted action against defendants. Defendants, joining issue, affirmatively alleged contributory negligence and volenti non fit injuria, counterclaimed for injury and property damage, and by cross-claim joined as additional party defendants the driver and owner of the Salsberry vehicle.

At the conclusion of the evidence, the trial court held defendant driver guilty of negligence as a matter of law, dismissed defendants' counterclaim and cross-claim, and submitted to the jury the issues of plaintiff's contributory negligence and the first phase of the doctrine of last clear chance.

The jury returned a verdict for plaintiff. The trial court granted defendants' motion for judgment notwithstanding the verdict upon the grounds that plaintiff was guilty of contributory negligence as a matter of law and that the doctrine of last clear chance was inapplicable. The trial court alternatively granted a new trial.

Plaintiff assigns error to the trial court's action and, in the event of a new trial, to certain instructions given and refused.

Defendants, pursuant to Rule on Appeal 16, ¹ RCW Vol. O, assign error to the trial court's rulings related to defendants' negligence, the applicability of the doctrine of volenti non fit injuria, and to certain instructions given and refused.

Our review of the record convinces us the trial court erred in granting judgment notwithstanding the verdict, and correctly granted a new trial. We so conclude because we are satisfied the trial court erred in (a) ruling defendants guilty of negligence as a matter of law, (b) ruling plaintiff guilty of contributory negligence as a matter of law, and (c) submitting to the jury the doctrine of last clear chance.

In discussing the reasons for our conclusions, in the order above listed, we do so in the light of the oft-cited rule that a challenge to the sufficiency of the evidence, a motion for dismissal or for directed verdict, or a motion for judgment notwithstanding the verdict admits the truth of the opponent's evidence, together with all reasonable inferences arising therefrom, and requires a most favorable interpretation thereof. No element of discretion is involved, and such motions can be granted only when the court can say, as a matter of law, there is no substantial evidence to support the opponent's claim. Williams v. Hofer, 30 Wash.2d 253, 191 P.2d 306; Lambert v. Smith, 54 Wash.2d 348, 340 P.2d 774; Miller v. Payless Drug Stores of Washington, 161 Wash.Dec. 649, 379 P.2d 932.

The trial court's determination that defendant driver was guilty of negligence as a matter of law of necessity must rest upon a premise of the driver's failure to timely observe and realize that the Salsberry vehicle was stationary.

Defendant driver testified she first observed the Salsberry taillights from a distance of about one block (300 to 400 feet) after moving, from behind another vehicle, into the passing lane at a speed of from 40 to 50 miles an hour. Thereafter her sequential impressions were that the disabled vehicle was moving normally, traveling slowly, standing still. When the latter realization took place, the evidence indicates, she applied her brakes, at a point between 48 to 150 feet from the disabled vehicle, attempted evasive action, and skidded upon the wet pavement into collision.

With but slight factual and...