Harrison v. Garner

• Decision Date: 22 March 1963
• Docket Number: No. 221,221
• Parties: William D. HARRISON, Appellant, v. Fred GARNER, Appellee.
• Court: Alaska Supreme Court

Page 948

379 P.2d 948

William D. HARRISON, Appellant, v. Fred GARNER, Appellee.

No. 221.

Supreme Court of Alaska.

March 22, 1963.

Robert A. Parrish, Fairbanks, for appellant.

William B. Emmal and Julian C. Rice, Rice & Emmal, Fairbanks, for appellee.

Before NESBETT, C. J., and DIMOND and AREND, JJ.

AREND, Justice.

The basic question presented on this appeal by the plaintiff below from a judgment following a general verdict for the defendant is whether the evidence in the case justified the trial court in giving an instruction on unavoidable accident.

The facts of the case are simple. In the late afternoon of June 19, 1960, the defendant-appellee was driving his Edsel car from Big Delta to Fairbanks over the Richardson Highway, a blacktop pavement road. With him as passengers were three co-workers, one of whom was the plaintiff-appellant riding in the back seat. At Mile 11 from Fairbanks, as the defendant was going into the last half of an inverted S curve (a maneuver which required him to veer to the left), one of the passengers commented that another car was coming up from behind, whereupon the defendant glanced back for a second in his rearview mirror at the approaching car to determine whether it was going to pass. That glance apparently was just one second too long, for, as the defendant himself testified, 'And the next time I looked at the road * * * it was too late, I had driven the right rear wheel, caught in the soft shoulder, and threw the car side-wise in the road.'

We gather from the record that as the defendant returned his gaze from the mirror back to the road ahead, he realized that he had come so close to the shoulder of the road that he had to make a quick turn to the left to avoid going off the pavement. This sudden turning of the front wheels to the left caused the right rear wheel to leave the road and drop down onto the soft shoulder and that, in turn, caused the entire car to turn sidewise, roll over several times and slide down the highway about two hundred feet before it wound up on its wheels again in the lefthand ditch, facing back in the direction from which it had come.

The defendant was familiar with road conditions on the Richardson Highway as he had been over it several times before the accident. He knew that the shoulders were of gravel and about two or three inches lower than the 'blacktopped' surface of the highway. While he could not fix his speed at the time the rear wheel went off the road and stated that he might or might not have been going fifty or fifty-five miles per hour, he did admit that he was driving at a sufficient speed to cause the car to swerve and turn over in the center of the road when the rear wheel went into the gravel.

There was no unusual condition in the surface of the road itself, no oncoming traffic from the opposite direction, and nothing to disrupt the vision of the defendant. On cross-examination the defendant admitted that the driver of the car to the rear did nothing to cause him, the defendant, to go off the pavement.

Included among the instructions given to the jury at the conclusion of all the evidence were two on 'mere accident' or 'unavoidable accident.' These instructions, which were properly objected to below and raised on appeal, were as follows:

'10 The mere fact that an accident happened, considered alone, does not as a rule permit the jury to draw the inference that the accident was caused by someone's negligence. Also the mere fact, if it is a fact, that it was possible for a person to avoid an accident he did not avoid, does not, of itself, justify a finding that he was negligent. If a person exercised ordinary care and did all that an ordinarily prudent person would have done in the circumstances to avoid an accident, he is not chargeable with negligence.

'11 [In part] The burden rests upon the plaintiff to prove by a preponderance of the evidence the elements of his damage, if any. The mere fact that an accident happened, considered alone, would not support a verdict for any particular sum.

The evidence was such that the jury could have found that defendant's own lack of care created or brought about the situation where the accident became inevitable or unavoidable. In these circumstances the instructions on unavoidable accident were not warranted. ¹ It was reversible error to give those instructions because their probable effect was to confuse and mislead the jury to plaintiff's prejudice. ²

The defendant tries to distinguish some of the decisions cited by the plaintiff which struck down instructions on unavoidable accident, because the cases there under consideration involved fact situations requiring higher than ordinary standards of care, as where they involved paying passengers or public conveyances or were based on a statute requiring 'highest degree of care.' ³ We find no basis for such a distinction. Under whatever standard of care, where the giving of an instruction on unavoidable accident is in issue, the question of law for the trial court to decide is simply whether the record contains any evidence of an unavoidable accident, not occasioned in any was by negligence of the party requesting the instruction, so as to warrant the giving of the instruction. ⁴

We consider next the challenge of the plaintiff to a ruling of the trial court which denied his motion for a mistrial. During his examination at the trial the plaintiff was asked by counsel for the defendant whether he, the plaintiff, had not in his deposition taken prior to the trial stated that the defendant at the time of the accident was...