Guerin v. Thompson

• Decision Date: 05 February 1959
• Docket Number: No. 34331,34331
• Citation: 335 P.2d 36,53 Wn.2d 515
• Parties: Daniel GUERIN, Appellant, v. Buryl THOMPSON and Marie Thompson, husband and wife, Respondents.
• Court: Washington Supreme Court

Page 515

53 Wn.2d 515

335 P.2d 36

Daniel GUERIN, Appellant, v.Buryl THOMPSON and Marie Thompson, husband and wife, Respondents.

No. 34331.

Supreme Court of Washington, Department 1.

Feb. 5, 1959.

Rehearing Denied April 21, 1959.

Parr & Baker, Olympia, for appellant.

Hull & Armstrong, Chehalis, for respondents.

OTT, Judge.

In the late afternoon of January 16, 1956, Daniel Guerin was driving his 1951 Willys station wagon west toward the city of Olympia on U. S. highwayNo. 99.The sun was shining, and the road was dry.Guerin passed a truck traveling in the same direction, driven by Dale Gunstone.After passing the truck, Guerin brought his automobile to a stop in the inside passing lane, preparatory to making a left turn into a private roadway on the opposite side of the highway.At the place in question, U. S. highwayNo. 99 is a paved, four-lane, arterial highway, with two lanes of travel in each direction.Two parallel barrier lines, more than four inches apart and painted yellow, separate the inside lanes.The shoulders of the highways are graveled and are approximately seven feet wide.Drivers proceeding toward Olympia have an unobstructed view for a distance of more than one-half mile.

At approximately the same time, Marie Thompson was driving her 1955 Chevrolet automobile on U. S. highwayNo. 99, in the same direction that the Guerin station wagon and the Gunstone truck were traveling.She was traveling at a speed of approximately forty-five miles an hour when she overtook the Gunstone truck, which was traveling at a speed of approximately thirty-five miles an hour in the outside lane of travel.The speed limit for automobiles at that point was fifty miles an hour, and forty miles an hour for trucks.

The Gunstone truck was a 1942 G. M. C. army truck with a shovel attachment.It was approximately eight feet wide and, with the shovel attachment, about twelve feet high.

When Mrs. Thompson was two to three car lengths behind the truck, and approximately seventy-five to one hundred feet from the stopped vehicle of Guerin, she turned to her left into the passing lane.Upon entering the passing lane, she did not immediately perceive that the Guerin automobile was stopped.She was about three car lengths from the vehicle before realizing that it was stopped, and immediately applied the brakes, but was unable to avoid colliding with the station wagon.

Guerin commenced this action against Marie Thompson and her husband for damages.The allegations of his complaint admit that he was stopped on the arterial highway, but allege that the negligence of Mrs. Thompson was the sole proximate cause of the collision, and that she had the last clear chance to avoid it.

Marie Thompson(who will be referred to as though she were the sole defendant) denied the allegations of the complaint and affirmatively pleaded that Guerin was guilty of contributory negligence.The case was tried to the court.

At the trial, the defendant contended that the plaintiff was guilty of contributory negligence, as a matter of law, in that he had violated two statutes: RCW 46.48.290, which prohibits stopping on the traveled portion of a highway, except under certain conditions not here applicable, and RCW 46.60.020, which prohibits left turns off a divided highway across the barrier lines.

The court found that the negligence of the plaintiff in operating his automobile in violation of the two statutes was a proximate cause of the accident, and held that the doctrine of last clear chance did not apply.

From a judgment in favor of the defendant, the plaintiff has appealed.

Appellant concedes that he operated his automobile in violation of the statute by stopping in the passing lane of an arterial highway, and that such violation constituted negligence per se.Appellant contends, however, that his unlawful stop was not a proximate cause of the accident, but a mere condition or circumstances, and asserts that the court applied an incorrect test of proximate cause.

The trial court stated in its oral decision

'* * * The accident was that type of thing the statute was designed to prevent and the hazard, created by stopping on the highway, was the type of hazard the statute was designed to prevent and, therefore, the negligence of the plaintiff in stopping to make an illegal left turn, a left turn which is prohibited by law, was such an act of negligence as must bar his recovery.

'The proximate cause of the accident, it is true that the act of contributory negligence must be one of the proximate causes of the accident.In this case, the presence of the plaintiff upon the roadway was one of the proximate causes of the accident.The proximate cause rule is sometimes stated as the but for rule.But for the presence of the plaintiff upon the roadway the accident could not have happened and, therefore, it cannot be said that the violation of the plaintiff was not a proximate cause.'(Italics ours.)

The trial court's oral or memorandum decision, if included in the record, may be considered by this court.Bowman v. Webster, 1953, 42 Wash.2d 129, 253 P.2d 934, and cases cited.

If the 'but for' test was the only criterion used by the court in determining that the appellant's violation was a proximate cause of the accident, the test was contrary to our holding in Eckerson v. Ford's Prairie School District No. 11, 1940, 3 Wash.2d 475, 482, 101 P.2d 345, 349, wherein we...