Grobe v. Valley Garbage Service, Inc.

• Decision Date: 24 June 1976
• Docket Number: No. 43940,43940
• Citation: 87 Wn.2d 217,551 P.2d 748
• Parties: Gail GROBE, Respondent/Cross-Appellant, v. VALLEY GARBAGE SERVICE, INC., a corporation, and Dennis E. Widener, Appellants.
• Court: Washington Supreme Court

Page 217

87 Wn.2d 217

551 P.2d 748

Gail GROBE, Respondent/Cross-Appellant, v. VALLEY GARBAGE SERVICE, INC., a corporation, and Dennis E Widener, Appellants.

No. 43940.

Supreme Court of Washington, En Banc.

June 24, 1976.

Rehearing Denied Sept. 16, 1976.

Smith Law Firm, Lawrence Carey Smith, Spokane, for appellants.

Winston, Cashatt, Repsold, McNichols, Connelly & Driscoll, Joseph Rekofke, Spokane, for respondent.

HOROWITZ, Associate Justice.

Defendants appeal a judgment against them in a comparative negligence case for personal injuries sustained by the plaintiff as a result of an automobile-truck collision within the Spokane Valley area, Washington. Plaintiff cross-appeals. We affirm.

Plaintiff's claim arises from a collision between her car and defendants' garbage truck at 12:30 p.m. on January 25, 1972, at an uncontrolled intersection in a residential area of what is commonly called the Spokane Valley. Plaintiff was proceeding west on 23rd Avenue and defendant Dennis Widener was driving the truck north on Glenn Road. Plaintiff and defendant Widener each testified her or his vehicle was going 15--20 m.p.h. when each first saw the other. The speed limit at the intersection was 25 m.p.h. The collision occurred in the northeast quadrant of the intersection of 23rd Avenue and Glenn Road. Plaintiff had the right of way. Both streets are paved and are 40 feet wide. At the time of the accident it was snowing, with 4 to 5 inches of snow on the ground. Neither driver saw the other in time to avoid the accident. Plaintiff's car was severely damaged and plaintiff was thrown out of the car and injured. No witnesses saw the accident, although a third party did see plaintiff's car as it spun and threw her out.

The trial began February 24, 1975. The jury returned a verdict finding plaintiff's total damages to be $100,000 and defendants' total damages to be $500, and finding plaintiff 25 percent negligent and defendant 75 percent negligent. Judgment was therefore entered for plaintiff in the sum of $75,000 and for defendants in the sum of $125. Defendants appealed and plaintiff cross-appealed.

Defendants first contend the court erred in refusing their instruction, submitting to the jury the issue of reasonable speed (RCW 46.61.400; WPI 70.05). Defendants claim, notwithstanding the oral testimony as to speed, the jury should have been permitted to determine on the basis of the physical evidence whether plaintiff was exceeding a reasonable speed at the time of the collision. The court did not err.

A speed instruction is properly refused when (1) excessive speed is not a proximate cause of the accident, or (2) the conclusion speed was unreasonable is the product of impermissible speculation and conjecture. Either or both reasons justify the refusal here.

We first consider proximate cause before plaintiff saw defendants' truck. It is undisputed plaintiff did not see defendants' truck until she arrived at approximately the entrance to the intersection. At that moment, defendants' truck was also just entering the intersection on her left. Plaintiff's car was on the north side of 23rd Avenue (which is 40 feet wide), and defendants' truck (approximately 7--8 feet wide) was at the entrance on the intersection on her left, on the east side (right hand lane) of Glenn Road (also 40 feet wide). The vehicles were separated only by the south side of 23rd Avenue, a distance of approximately 20 feet. Both vehicles continued to move at approximately 15--20 p.m.h. (22.1--29.3 ft./sec.). Plaintiff therefore had only about 1 second of reaction time available before collision. Plaintiff could not have traveled further than 12--13 feet (the width of one lane of Glenn Road less the width of the truck) before colliding with the truck. Even if plaintiff's car had been traveling as little as 7 m.p.h. (10.3 ft./sec.)--hardly an excessive speed--she would have traveled 10.3 of the 12--13 feet in 1 second, and considering plaintiff's entitlement to reaction time as later discussed, the collision could not have been avoided. See Murray v. Banning, 17 Wash.2d 1, 6, 134 P.2d 715 (1943); Am.Jur.2d Deskbook 456 (1962).

As stated in White v. Greyhound Corp., 46 Wash.2d 260, 264, 280 P.2d 670, 673 (1955):

This court, on several occasions, has held that the speed of an automobile, in excess of that permitted by statute or ordinance, was not the proximate cause of a collision when the automobile of the one charged with excessive speed was where it was entitled to be, And the driver would not have had sufficient time to avoid the collision had he been driving at a lawful speed.

(Italics ours.)

Therefore, if speed, even if excessive, is not a proximate cause of the collision, liability cannot be based thereon. Moyer v. Clark, 75 Wash.2d 800, 804, 454 P.2d 374 (1969); Bohnsack v. Kirkham, 72 Wash.2d 183, 194, 432 P.2d 554 (1967); Woodward v. Simmons, 7 Wash.2d 10, 19, 108 P.2d 637 (1941); Beach v. Pacific Northwest Traction Co., 135 Wash. 290, 237 P. 737 (1925). In such a case, the trial court may properly refuse an instruction on the speed of the automobile. Burlie v. Stephens, 113 Wash. 182, 187--88, 193 P. 684 (1920). In the instant case, the trial court stated in refusing the proposed instruction the speed of plaintiff's automobile was not a substantial factor contributing to the accident.

Nor can excessive speed be shown to be a proximate cause of a collision where there is no substantial evidence the speed was excessive. Therefore, the speed instruction was also properly refused because any conclusion from the circumstantial evidence that plaintiff's speed was excessive under RCW 46.61.400 would be speculative--the product of guesswork and conjecture. Izett v. Walker, 67 Wash.2d 903, 909--10, 410 P.2d 802 (1966).

Before plaintiff saw defendants' truck, while plaintiff was driving towards the intersection, as later appears, there is substantial evidence plaintiff was not maintaining a proper lookout. However, failure to maintain a proper lookout is not evidence plaintiff's speed was excessive. Thus the Ohio speed statute as construed in McDonald v. Kelly, 101 Ohio App. 46, 52, 134 N.E.2d 396 (1955) (approved in State v. Saffell, 44 Ohio St.2d 39, 337 N.E.2d 622 (1975), makes the determination of whether speed is excessive depend on physical conditions in or connected with the highway. The statute does not make excessive speed depend on failure to maintain a proper lookout. McDonald v. Kelly, supra 101 Ohio App. at 52, 134 N.E.2d at 400, states:

(A)n excessive rate of speed may not be shown by proof of the failure to exercise the common-law obligation of maintaining a lookout into a street from which a nonpreferred driver of an automobile as moving.

RCW 46.61.400 likewise makes no mention of lack of a proper lookout as a permissible factor in determining excessive speed. Such a determination is made 'under the conditions and having regard to the actual and potential hazards then existing.' These include 'when (a) special hazard exists with respect to . . . other traffic or by reason of whether or highway conditions.'

Nor do the physical conditions at the time of the collision, properly considered under RCW 46.61.400, permit an inference of excessive speed. To answer this question in a particular case there must be substantial evidence of what would have been a reasonable speed under the conditions then prevailing.

The record shows when plaintiff approached the intersection, there was snow on the ground and her visibility was obstructed by the snow storm. There was, however, no expert testimony nor for that matter, any other evidence as to what a reasonable speed would have been under these circumstances. See, e.g., Walker v. Butterworth, 122 Wash. 412, 415, 210 P. 813 (1922). Thus, there was no evidence of the speed of other vehicles using these roads at the same time.

Defendants contend there are several categories of physical or circumstantial evidence of excessively high speed: (1) whether conditions and terrain; (2) behavior of plaintiff's car up to the time of the impact; and (3) nature and violence of the collision.

None of these categories of evidence alone or together are sufficient to establish plaintiff's speed was excessive. The mere fact that certain weather conditions and terrain were present at the time of the accident, standing alone or together with anything in common knowledge, cannot furnish an adequate basis for a conclusion that plaintiff's vehicle operated at 15--20 m.p.h. in a 25 m.p.h. zone under those conditions was operated at an excessive speed under the provisions of RCW 46.61.400. We have already noted that the behavior of plaintiff's car up to the time of impact, and whether before or after plaintiff saw the truck, does not furnish a basis for determining what a reasonable speed should have been. Plaintiff, after seeing defendants' truck, had no significant opportunity to slow down or to take other evasive action although she had already begun to turn to the right at the intersection. No conclusions as to reasonable speed under the conditions then prevailing could be drawn from the behavior of plaintiff's car prior to the impact without impermissible guess, speculation and conjecture.

We are left then with considering whether the nature and violence of the collision provides the missing substantial evidence needed to show plaintiff's speed was excessive.

The following facts are undisputed. The left front of plaintiff's car collided with the right front of defendants' truck, and the left side and rear of her car then slammed into the side of the truck. Plaintiff's car was severely damaged, and plaintiff was thrown out of the car and severely injured. Her car, when it came to rest, faced south next to the east curb of Glenn Road and was located approximately 10 feet north of 23rd Avenue. The truck was damaged in the door, gas tank and running board, all on the passenger's side. The truck was...