Harris v. Burnett

• Decision Date: 03 March 1975
• Docket Number: No. 2443--I,2443--I
• Citation: 12 Wn.App. 833,532 P.2d 1165
• Parties: David W. HARRIS, as guardian ad litem for Dale R. Johnson, a minor, Appellant, v. John C. BURNETT et al., Respondents.
• Court: Washington Court of Appeals

Page 833

12 Wn.App. 833

532 P.2d 1165

David W. HARRIS, as guardian ad litem for Dale R. Johnson, a minor, Appellant, v. John C. BURNETT et al., Respondents.

No. 2443--I.

Court of Appeals of Washington, Division 1.

March 3, 1975.

[532 P.2d 1167] Gale P. Hilyer, Jr., Seattle, for appellant.

Murray, Dunham & Waitt, Wayne Murray, Seattle, for respondent.

CALLOW, Judge.

Dale R. Johnson, the plaintiff, appeals from a jury verdict in favor of the defendant, John C. Burnett, in a personal injury suit. He assigns as error the failure of the trial court to direct a verdict in his favor, and he callenges an instruction given by the trial court as well as the failure of the trial court to give a proposed instruction. The plaintiff claims there is no evidence of any negligence on his part and no basis upon which the defendant can assert that he exercised due care.

It was a clear, sunny aftermoon on October 15, 1970, when the plaintiff's motorcycle collided with the defendant's automobile at the intersection of South 182nd Street and 44th Avenue South. The defendant was traveling west on South 182nd Street and was turning south onto 44th Avenue South when the plaintiff, who was coming from the opposite direction traveling east on South 182nd Street, struck the front of the defendant's automobile with his motorcycle. The intersection of South 182nd Street and 44th Avenue South is a right angle intersection at the bottom of a shallow bowl with South 182nd Street rising uphill to the west to a crest approximately 350 feet from the intersection. It is over this crest that the plaintiff rode on his motorcycle. Witnesses at the trial testified that the defendant's car was turning at a speed between 5 and 10 mph. The plaintiff admitted at trial that he was traveling from 30 to 45 mph in a 25 mph zone. He further testified that he saw the defendant's car before the collision and that as he came down the hill there were from 10 to 15 school children strung out on the roadway on the west side of the intersection which caused him to swerve around them and cross the center line of South 182nd Street just before coming to the intersection. It was also his testimony that he did not see the defendant's car making its left hand turn. The defendant testified that his vision was obscured by the school children on the roadway, and he saw the plaintiff's motorcycle only momentarily before it hit the right front of his automobile. The impact occurred in the southern part of the intersection or immediately south of the southern lane of South 182nd Street in 44th Avenue South.

THE EVIDENCE PRECLUDED A DIRECTED VERDICT

The evidence was sufficient to support a finding by the jury that the plaintiff was contributorily negligent. Contributory negligence is an issue for the jury to determine from all the facts if substantial evidence has been admitted which would support any interpretation leading to a reasonable conclusion that the plaintiff was negligent. A jury question arises unless the evidence is such that all reasonable minds would agree that the plaintiff had exercised the care a prudent person would have exercised under the circumstances. Shasky v. Burden, 78 Wash.2d 193, 470 P.2d 544 (1970); Poston v. Mathers, 77 Wash.2d 329, 462 P.2d 222 (1969); Bauman v. Complita, 66 Wash.2d 496, 403 P.2d 347 (1965); Stevens v. State, 4 Wash.App. 814, 484 P.2d 467 (1971). The plaintiff's motion challenged the sufficiency of the evidence to establish the defense of contributory negligence and also asserted that the evidence determined the negligence of the defendant as a matter of law. In such a situation, unless the evidence when interpreted most strongly against the plaintiff and most favorably for the defendant establishes negligence on the part of the defendant and an absence of negligence on the part of the plaintiff, the motion must be denied. Moyer v. Clark, 75 Wash.2d 800, 454 P.2d 374 (1969); Pollard v. Wittman, 28 Wash.2d 367, 183 P.2d 175 (1947).

The nature of intersection collisions makes timing an all pervasive element to be evaluated by the jury when the circumstances leave the imposition of fault open to question. The interaction between two vehicles involves location, direction, movement, conditions, obstructions, actions, observations and numerous other influences that may have brought about a crash course rather than safe passage. These matters must be assessed by the jury unless the evidence permits no inference of negligence on the part of one party or on the part of the other. The conduct of the favored or the disfavored driver is subject to jury scrutiny if substantial evidence exists of negligence on the part of either. When approaching an intersection, a favored driver has the right to assume that the disfavored driver will yield the right-of-way to him. Nevertheless, he must exercise ordinary care in his own actions, he may not ignore oncoming traffic and he must keep a lookout for his own safety. If he does not do so, he may be contributorily negligent. Harmon v. Merrick, 62 Wash.2d 171, 381 P.2d 614 (1963); Day v. Frazer, 59 Wash.2d 659, 369 P.2d 659 (1962); Jones v. Widing, 7 Wash.App. 390, 499 P.2d 209 (1972).

EVIDENCE OF SPEED

It is for the jury to decide whether the driver of a vehicle was exceeding the speed limit or exceeding a reasonable speed under the circumstances and whether such excessive speed constituted negligence. In addition to the admission by the plaintiff that he was exceeding the speed limit, a number of witnesses also testified that he was traveling in excess of the speed limit at the intersection. Further, the investigating state trooper testified that the safe speed at the intersection was 20 mph rather than the maximum speed limit of 25 mph. RCW 46.61.400; Robison v. Simard, 57 Wash.2d 850, 360 P.2d 153 (1961).

When there is conflicting evidence as to the proper speed on an approach to an intersection, it is for the jury to decide (a) what was a reasonable speed under all of the circumstances, (b) was that speed exceeded by the approaching driver, and (c) if so, was the speed a proximate cause of the accident. Bohnsack v. Kirkham, 72 Wash.2d 183, 432 P.2d 554 (1967); Thompson v. Seattle, 42 Wash.2d 53, 253 P.2d 625 (1953). The operator of a motor vehicle is required to drive at a speed that allows him to observe the roadway ahead and be able to take appropriate action in the event that hazards appear in his path. James v. Edwards, 68 Wash.2d 194, 412 P.2d 123 (1966). Whether a person has driven at a reasonable speed under the existing circumstances and conditions is for the jury. Wolff v. Coast Engine Prods., Inc., 72 Wash.2d 226, 432 P.2d 562 (1967); Ashley v. Ensley, 44 Wash.2d 74, 265 P.2d 829 (1954); Pancoast v. McLean, 6 Wash.App. 592, 494 P.2d 1374 (1972). In addition, where two vehicles have simultaneously approached an intersection, the jury has the duty of deciding whether the disfavored driver was deceived by excess speed on the part of the favored driver or the favored driver's operation of his vehicle. A favored driver's violation of the speed limit, standing alone, is not sufficient to establish deception of the disfavored driver. Chavers v. Ohad, 59 Wash.2d 646, 369 P.2d 831 (1962). See also Zuccone v. Main Fish Co., 104 Wash. 441, 177 P. 314 (1918); Barth v. Harris, 95 Wash. 166, 163 P. 401 (1917). The testimony presented in this case permitted the conclusion that the plaintiff was driving at an unsafe speed when he came over the crest of the hill and approached the intersection on a roadway partially cluttered with pedestrians.

PROXIMATE CAUSE

An act or happening is a proximate cause of an injury when it has been a factor in bringing about in a direct sequence an unfortunate result, and the result would not have happened unless the act had been committed or the happening taken place. King v. Seattle, 84 Wash.2d 239, 525 P.2d 228 (1974); Rose v. Nevitt, 56 Wash.2d 882, 355 P.2d 776 (1960); Blasick v. Yakima, 45 Wash.2d 309, 274 P.2d 122 (1954).

The plaintiff asserts that his speed could not have been a proximate cause of the collision, claiming that he had only a few seconds to react to avoid the left-turning defendant. This assertion fails to acknowledge that the evidence could also be interpreted to support the defendant's position. As noted in Fovargue v. Ramseyer, 73 Wash.2d 574, 439 P.2d 966 (1968), it is error to direct a verdict for an oncoming favored driver because the disfavored driver did not yield if the testimony would support a jury finding that the favored driver was not in sight when the left turn of the disfavored driver was commenced. The speed with which oncoming traffic crosses the crest of the hill has much to do with the time that a disfavored driver has to observe and avoid the oncoming car. Whether this speed of the favored driver was such as to either bring the favored driver so suddenly upon the scene as to surprise the disfavored driver or impair his own ability to avoid the collision is a jury question. When the plaintiff admitted exceeding the speed limit, it became a jury question as to whether that negligence per se was a proximate cause of the accident under the circumstances. The evidence was susceptible to the interpretation that the plaintiff's speed (a) kept the defendant from seeing his approach, or (b) limited the opportunity of the plaintiff to see the turning defendant, or (c) caused the plaintiff to swerve around the school children thereby lessening his control of his vehicle, or (d) placed the plaintiff in a position where he could not give way to the disfavored driver who was already into his turn when he saw him. Certainly there was substantial evidence on which the jury could find that the speed of the plaintiff was a proximate cause of the collision. Ward v. Zeugner, 64 Wash.2d 570, 392 P.2d 811 (1964); Kilde v. Sorwak, 1 Wash.App. 742, 463 P.2d 265 (1970). In Fovargue, 73 Wash.2d on page 582, 439 P.2d on page 970--971, ...