French v. Chase, 33446

• Decision Date: 03 May 1956
• Docket Number: No. 33446,33446
• Citation: French v. Chase, 48 Wn.2d 825, 297 P.2d 235 (Wash. 1956)
• Parties: Henry D. FRENCH, Respondent, v. Lionel E. CHASE, Appellant.
• Court: Washington Supreme Court

Page 825

48 Wn.2d 825

297 P.2d 235

Henry D. FRENCH, Respondent, v.Lionel E. CHASE, Appellant.

No. 33446.

Supreme Court of Washington, Department 1.

May 3, 1956.

Edwin R. Johnson, Tacoma, for appellant.

D. V. Morthland, Norman R. Nashem, Jr., Yakima, for respondent.

OTT, Justice.

March 29, 1954, Lionel E. Chase was driving his jeepster automobile on the Olalla-Gig Harbor highway in Kitsap county.He was accompanied by Melvin W. Schott and Ray L. Thomas.Approximately two miles south of Olalla, Mr. Chase lost control of the automobile.It swerved to the right side of the road, and then crossed to the opposite side, where it overturned and came to rest upside down, approximately 42 feet from the surfaced portion of the roadway.Chase and Thomas were thrown clear, but Schott was pinned beneath the automobile, the frame of the windshield resting upon his legs.Chase turned off the motor.He and Thomas then either attempted to lift the car to free Schott and found that they could not, or, without trying, decided that they could not.At any rate, they left Schott pinned under the vehicle and went to a nearby residence to seek aid.

At approximately 3:30 p. m., not more than five minutes after Chase and Thomas left to seek help, Henry D. French noticed the overturned vehicle and stopped his truck to see what had happened.Almost immediately, a second vehicle stopped behind French's truck and its occupants joined him in investigating the accident.Upon discovering that Schott was pinned beneath the car, French, his companion, Charles Burkhart, and the occupants of the other car, Betty Heyer and Phyllis Braaten, deliberated for a short time to determine how to extricate Schott.French and Burkhart then attempted to lift the vehicle, but were unable to do so.Thereafter, French stooped and placed his left shoulder under the hood, and, with the added help of the two women, the four persons were able to raise the overturned automobile sufficiently for Schott to free himself.The time interval between French's arrival at the scene and the freeing of Schott was approximately five minutes.

Twenty minutes later, French noticed that his left hand had 'gone to sleep,' and later that day, while he was driving back to Yakima, his left shoulder became sore.Earlier in the day, he had assisted in some heavy lifting while his truck was being loaded with household furniture, a refrigerator, and a deep-freeze unit.He was accustomed to heavy lifting.

April 8, 1954, French consulted an osteopath about his shoulder.He received treatments for some time and, in the latter part of August, 1954, he consulted a doctor of medicine in connection with the same injury.

November 30, 1954, French commenced this action against defendant Chase to recover damages.French alleged that he incurred injuries while rescuing Schott, who had been placed in peril by Chase's negligence in operating the jeepster.

At the trial, Thomas testified that, just prior to the accident, Chase had been exceeding the speed limit; that the three had been drinking intoxicating liquor during the ride, and that Chase was intoxicated.These accusations were denied by Chase.

The testimony was in conflict as to the imminence of Schott's peril.Betty Heyer testified:

'Q.Did he say anything to anybody while he was pinned underneath the car?A.He asked if we would help get it off him. * * *

'Q.All was quiet?There wasn't anything about the Jeep that looked dangerous or anything like that?A.No.'Phyllis Braaten testified:

'Q.And the Jeep, itself,--there was nothing dangerous from what you could see from the Jeep, itself?A.No, it seemed to be all right.

'Q.I mean, it wasn't smoking or burning or about to roll over or anything like that?A.No, it was pretty still.'

French testified that, as he approached the jeepster, he saw smoke coming from the engine, noticed that battery acid was leaking, and smelled gasoline.With reference to Schott's condition, he testified that his overalls were torn; that his legs were scraped to the ankles; that he was bleeding to some extent, and that he was pinned beneath the windshield, screaming for help.

The jury returned a verdict for the plaintiff.Judgment was entered thereon, and the defendant has appealed.

Appellant makes thrity-seven assignments of eror.The principal assignments are (1) that the rescue doctrine should not have been applied to the facts of this case, (2) that the issue of contributory negligence on the part of respondent should have been submitted to the jury, (3) that certain testimony was erroneously admitted, over objection, and (4) that the jury was permitted to speculate as to the cause of the injury.

The application of the rescue doctrine is not a matter of first impression in this jurisdiction.In Highland v. Wilsonian Inv. Co., 1932, 171 Wash. 34, 17 P.2d 631, we held that, where the defendant's negligence creates a dangerous situation which imminently imperils the life or limb of another, such peril invites rescue, and that, if the rescuer is injured in effecting a rescue, the defendant's negligence is the proximate cause of the rescuer's injury.The rescuer may act either upon impulse or after deliberation, so long as his act is, as stated by Judge Cardozo in Wagner v. International R. Co., 1921, 232 N.Y. 176, 133 N.E. 437, 438, 19 A.L.R. 1, 'the child of the occasion.'However, in determining whether there is peril to some person, and in acting to effect a rescue after the determination that there is peril, the rescuer must be guided by the standard of reasonable care under the circumstances.

'In Dixon v. New York, N. H. & H. R. Co., 207 Mass. 126, 92 N.E. 1030, 1031, it is stated:

"It is true, as was held in Linnehan v. Sampson, 126 Mass. 506, 30 Am.Rep. 692, and in many of the other cases above cited, that it is for the jury to say, upon all the circumstances, including the existing emergency and the need of immediate action under which they may find that the plaintiff acted, whether in fact his conduct was that of a reasonably prudent man. * * *"Highland v. Wilsonian Investment Co., supra, 171 Wash. at page 42, 17 P.2d at page 634.

See, also, Wagner v. International R. Co., 232 N.Y. 176, 133 N.E. 437, 19 A.L.R. 4;Brugh v. Bigelow, 310 Mich 74, 16 N.W.2d 668, 158 A.L.R. 189.

The rescuer's conduct with reference to this standard may involve the issue of contributory negligence.Contributory negligence consists of some act or omission on the part of the rescuer that caused or contributed to cause his injury, and which was not such as would have been done or omitted by a person exercising reasonable prudence under the circumstances.Walsh v. West Coast Coal Mines, 1948, 31 Wash.2d 396, 407, 197 P.2d 233, and case cited.

In Hawkins v. Palmer, 1947, 29 Wash.2d 570, 188 P.2d 121, we stated that every person who gives aid to an injured person is not necessarily engaged in a rescue.We there announced that, where an alleged rescuer is not award of imminent peril to the injured person, and merely goes to his aid, the fact that such imminent peril exists does not bring the rescuer within the doctrine.

On the basis of these cases, we hold that, in this jurisdiction, the rescue doctrine, as it is applied to situations of this kind, includes the following elements:

(1) There must be negligence on the part of the defendant which is the proximate cause of peril, or what would appear to a reasonable person, under the circumstances, to be peril, to the life or limb of another.

(2) The peril, or reasonable appearance of peril, to the life or limb of another must be imminent.

(3) In determining whether the peril, or appearance of peril, is imminent, in the sense that an emergency exists requiring immediate action, the circumstances presented to the rescuer must be such that a reasonably prudent man, under the same or similar circumstances, would determine that such peril existed.(The issue of whether the rescuer's determination conformed with the reasonably prudent man standard is a question for the jury, under proper instructions.)

(4) After determining that imminent peril to the...