Holmquist v. Grant County, 34952

• Decision Date: 18 June 1959
• Docket Number: No. 34952,34952
• Citation: 54 Wn.2d 376,340 P.2d 788
• Parties: Margaret P. HOLMQUIST, Appellant, v. GRANT COUNTY, a political subdivision of the State of Washington, Respondent.
• Court: Washington Supreme Court

Page 376

54 Wn.2d 376

340 P.2d 788

Margaret P. HOLMQUIST, Appellant, v. GRANT COUNTY, a political subdivision of the State of Washington, Respondent.

No. 34952.

Supreme Court of Washington, Department 1.

June 18, 1959.

Washington & Wickwire, Ephrata, Joe McAdams, Moses Lake, for appellant.

Hughes & Jeffers, Wenatchee, for respondent.

HILL, Judge.

From a judgment on the verdict of a jury in favor of the defendant, Grant County, in an action for personal injuries, the plaintiff, Margaret P. Holmquist, appeals.

The only things certain in this case are: that the car in which the plaintiff was a passenger failed to negotiate a sharp turn in a county road; that there was no warning sign giving notice of the turn; that the plaintiff sustained injuries on being thrown out of the car; that the car skidded one hundred twenty-one feet before leaving the highway and skidded another twenty-five feet through loose gravel, turned over, landed on its wheels faced in the opposite direction to which it had been traveling and some two hundred feet from where the skid marks started.

There exists in the minds of some of the judges a serious question as to whether there was sufficient evidence on the issue of proximate cause to take this case to the jury; but, passing that question and assuming that there was a case for the jury, we will consider the various assignments of error, which deal primarily with the instructions given and refused.

The instructions, as a whole, were concerned with four phases peculiar to this particular case:

A. The negligence on the part of the county. (Claimed negligence set out in instruction No. 2, the failure to post signs and maintain barriers, covered in instructions Nos. 11 1/2 and 12 1/2.)

B. The fact that the negligence, if any, of the driver of the car in which the plaintiff was riding was not attributable to her and would not bar her recovery (presented by instruction No. 8).

C. The corollary of A and B: that if both the county and the driver were negligent, and the negligence of each of them was a proximate cause of the plaintiff's injuries, the plaintiff was entitled to recover against the county (presented by instruction No. 8). To these should be added the proposition on which the county's case rested, i. e.,

D. The obligation of the plaintiff to prove that the negligence by the county was a proximate cause of the plaintiff's injuries (presented by instructions Nos. 11 1/2 and 12 1/2).

The trial court gave an instruction (No. 11) reading,

'You are instructed that the defendant is not a guarantor against accidents, nor a guarantor of the safety of travelers. The duty of Grant County is to exercise ordinary care in maintaining public ways in a reasonably safe condition for persons using such ways.'

The plaintiff-appellant, by her first assignment of error, urges that the trial court should have added the following to the instruction, as given:

'* * * and to use such care as would keep such public highway in a reasonably safe condition, including the placing and maintaining of warning signs at such places as would afford notice to travelers of a situation inherently dangerous or of such a character as to mislead a traveler exercising reasonable care.'

As we have recently pointed out in McDonald v. Spokane County, Wash.1959, 336 P.2d 127, a trial court is under no obligation to buttress jury arguments with supporting instructions. Counsel could, on the basis of the instruction given, have argued--and, doubtless did--the obligation of the county to post signs and not to mislead travelers. However, the jury was adequately informed of the claimed negligence by instruction No. 2, in these words,

'* * * and that a sharp turn has been made to permit vehicles traveling on the Old Moses Lake Highway to enter Highway 11-G; that a substantial ditch has been placed at the point where the Old Moses Lake-Ephrata Highway terminates and that there is no warning sign or other indication that said sharp turn exists and that there is no barrier placed there to warn of the sharp turn or of the existence of the ditch. The plaintiff further claims that such condition constitutes a menace and is dangerous and hazardous to travelers and that said condition had existed for a substantial time prior to the time of the accident and that the defendant knew, or in the exercise of reasonable care should have known that such condition existed and was a dangerous and hazardous condition.'

Again, in instruction No. 11 1/2, the jury was advised that the claimed negligence of the county consisted of 'the manner...