Hester v. Watson

• Decision Date: 27 November 1968
• Docket Number: No. 39097,39097
• Citation: 74 Wn.2d 924,448 P.2d 320
• Court: Washington Supreme Court
• Parties: Huey L. HESTER and Birta Hester, husband and wife, and the marital community of them composed, Appellants, v. Harry WATSON, Respondent.

Page 924

74 Wn.2d 924

448 P.2d 320

Huey L. HESTER and Birta Hester, husband and wife, and the marital community of them composed, Appellants, v. Harry WATSON, Respondent.

No. 39097.

Supreme Court of Washington, En Banc.

Nov. 27, 1968.

Reese & Mitchell, James B. Mitchell, Walla Walla, for appellants.

Minnick, Hahner & Hubbard, H. H. Hahner, Walla Walla, for respondent.

HILL, Judge.

Mr. and Mrs. Huey L. Hester, with Mr. Hester driving, were traveling in a southerly direction on The Dalles Military Road. When they reached its intersection with Washington State Primary Highway No. 125 (which at that particular point runs roughly east and west), they stopped at the stop sign. Mr. Hester looked to the east and saw the pickup truck being driven by Mr. Harry Watson from what seemed to Mr. Hester a considerable distance away; ¹ he looked west, and there was nothing coming from that direction; he then made a right turn onto Highway No. 125 and proceeded westerly, accelerating his speed. Some 225 feet ² from where it had come onto Highway No. 125, the Hester car was rear-ended by the Watson car. The cars locked bumpers, and the Hester car was pushed another 330 feet back and forth across the highway, and then off the south side and into a field.

The Hesters brought this action to recover for the injuries they sustained and the damage to their car. Mr. Watson cross-complained, asking for damages for the injuries he sustained and the damage to his car. The jury verdict denied recovery to either party, which was tantamount to a determination that both parties were negligent. The Hesters have appealed from the judgment of dismissal against them; Mr. Watson did not cross-appeal.

The jury's determinations of negligence on the part of both parties may have been correct; however, it is axiomatic that a party is entitled to have the court instruct the jury on his theory of the case if there is substantial evidence to sustain it. Kelsey v. Pollock, 59 Wash.2d 796, 797, 370 P.2d 598 (1962). The issues on this appeal become: Did the trial court fail to properly instruct the jury on the Hesters' theories of the case; i.e., no negligence because the Hesters' car was a preceding car and, if negligent, still entitled to recover on the basis that Mr. Watson had the last clear chance to avoid the collision?

The trial court instructed the jury on the theory of the defendant Watson that this was an intersection case; and it refused to instruct on the Hesters' theory that it was a preceding and following-car situation. It also refused to instruct on either phase of the last clear chance doctrine.

The trial court treated the negligence of Mr. Hester as a disfavored driver entering an intersection as a jury question on the basis of the then ³ recognized rule:

Automobiles which collide as a result of the disfavored driver's having failed to leave a fair margin of safety, are simultaneously approaching the intersection even if the accident occurred outside the bounds of the intersection. (Instruction no. 17.)

We have recognized that if a disfavored driver enters an intersection at such a time and place as to produce an emergency situation in which the favored driver is unable, in the exercise of reasonable skill and judgment, to avoid a collision, then the disfavored driver's failure to yield the right of way at the intersection would constitute negligence per se, even though the resultant collision occurred outside the bounds, i.e., the physical limits, of the intersection. Petersavage v. Bock, 72 Wash.Dec.2d 1, 431 P.2d 603 (1967); Nelson v. Molina, 53 Wash.2d 412, 334 P.2d 170 (1959).

The question presented by this case and by the two cases just cited is: How far beyond the intersection does a driver entering an arterial at an intersection have to travel on the arterial, and for how long, before a jury is entitled to find him to be a preceding driver, if his car is rear-ended by a car that was already on the arterial?

Petersavage v. Bock, supra, holds, as a matter of law, that a driver who has entered upon an arterial at an intersection and has been there only two or three seconds, and traveled less than 50 feet beyond the intersection, has not been on the arterial a sufficient time or distance to have attained any status other than that of a disfavored driver entering an intersection; and, as such, he cannot be considered a preceding driver when his car is rear-ended by a car already on the arterial; consequently, he was not entitled to have an instruction given on the duties of a driver of a following or overtaking car.

Nelson v. Molina, supra, holds that where there is evidence that the driver entering an arterial at an intersection has been on the arterial seven or eight seconds and traveled a hundred feet thereon his negligence as a disfavored driver ceases to be a matter of law, and that the jury should be permitted to determine whether he was a disfavored driver entering an intersection, or whether he was a preceding driver when rear-ended by a car already on the arterial. Consequently, Molina was entitled to the benefit of a following, or passing-car instruction, or both. In short, it was a question which the jury could determine either way.

Had the jury ignored the Hesters' testimony and considered only Mr. Watson's own testimony, the testimony of the investigating officer as to what Mr. Watson told him, or the computations of Mr. Watson's own witness, the jury could have found therefrom that Mr. Watson was the driver of a following car and that the collision was proximately caused by his negligence as such.

MR. WATSON'S TESTIMONY: He testified that he was about half way between the railroad track and the intersection (more than 500 feet east of the intersection) when he saw the Hester car approaching the stop sign. He then looked into his rear-view mirror and when he looked ahead again the Hester car was right in front of him and the collision was unavoidable. ⁴ The collision occurred some 225 feet west of the stop sign. By his own admission he traveled more than 725 feet (better than 8.5 seconds at his estimated speed of 55 miles an hour) without paying any attention to traffic conditions directly ahead of him. This a jury might well regard as negligence proximately causing the collision.

MR. WATSON'S STATEMENT TO THE INVESTIGATING OFFICER: State Patrol Trooper, Kenneth A. Graves, testified that Mr. Watson told him that he (Watson) was approximately 100 feet from the intersection when the Hesters 'pulled out in front of him.'

This meant that Mr. Watson had the Hesters in sight while he was traveling at least 325 feet, while they traveled 225 feet during a time estimated at 7.6 seconds. The jury could certainly conclude from such testimony that this was a following-car situation.

THE COMPUTATIONS OF MR. WATSON'S WITNESS: One computation was that it took the Hseters 7.6 seconds to travel 225 feet from the stop sign, accelerating from a stop to 40 miles an hour. Another computation indicated that in the same time Mr. Watson, traveling at 55 miles an hour, traveled 615 feet, which would place him 390 feet east of the stop sign when the Hesters were starting from the stop sign.

Under this or either of the two preceding versions as to where Mr. Watson was when the Hesters entered upon the arterial, a jury could find that he was a following driver for distances varying from 725 feet to 325 feet, and for a minimum of 7.6 seconds. ⁵

The court's failure to instruct ⁶ on the theory that this was a following-car situation--there being substantial evidence to support each theory--was reversible error. Harris v. Fiore, 70 Wash.2d 357, 423 P.2d 63 (1967); Carraway v. Johnson, 63 Wash.2d 212, 386 P.2d 420 (1963); Kelsey v. Pollock, 59 Wash.2d 796, 370 P.2d 598 (1962); Lidel v. Kelly, 52 Wash.2d 238, 324 P.2d 817 (1958); DeKoning v. Williams, 47 Wash.2d 139, 286 P.2d 694 (1955).

As we said in Harris v. Fiore, supra, 'If a given set of facts supports two or more theories of law, the court must instruct on all the theories to which the facts pertain.'

Counsel for Watson seek to explain the failure to give an instruction on the duties of a driver of a following car by pointing out that an instruction was given setting out the duties of a driver overtaking and passing another car upon the highway. ⁷ It is also pointed out that in Nelson v. Molina supra, the two theories presented to the jury were that Molina was either a disfavored driver 'entering an intersection,' or had become the driver of a preceding car and was entitled to an instruction on the duties of an 'overtaking and passing driver.'

In that case, Nelson had attempted to pass Molina after the latter had come onto the arterial at the intersection, but seeing an oncoming car in the passing lane he had swung back behind Molina to avoid a head-on collision and had rear-ended Molina. The overtaking and passing instruction was appropriate in that situation.

The present case, however, is not an overtaking and passing case. Watson made no attempt to pass the Hester car. The following-car instruction was appropriate and necessary to present the Hesters' theory of the case, and should have been given.

The Hesters also urge, as previously indicated, that their requested instructions on both phases of last clear chance should have been given, even if the jury found that they were negligent. This seems, at first glance, like a classic last clear chance case: If the Hesters were negligent in driving their car onto and proceeding down the highway ahead of Mr. Watson, he could have turned into the passing lane and avoided hitting them during the time it took the Hesters to travel 225 feet on highway No. 125--a minimum of 7.6 seconds--and while he was traveling between 325 and 725 feet, based on his own testimony and out of court statements.

The difficulty in determining the applicability of last clear chance to the situation here is Mr. Watson's testimony that,...