De Koning v. Williams, 33192

• Decision Date: 11 August 1955
• Docket Number: No. 33192,33192
• Parties: Raymond DE KONING, a minor, by John DeKoning, his guardian ad litem, Appellant, v. Eugene Frank WILLIAMS, a minor, by Frank J. Williams, his guardian ad litem; Frank J. Williams and Mrs. Frank J. Williams, his wife, Respondents.
• Court: Washington Supreme Court

Page 139

47 Wn.2d 139

286 P.2d 694

Raymond DE KONING, a minor, by John DeKoning, his guardian ad litem, Appellant, v. Eugene Frank WILLIAMS, a minor, by Frank J. Williams, his guardian ad litem; Frank J. Williams and Mrs Frank J. Williams, his wife, Respondents.

No. 33192.

Supreme Court of Washington, Department 1.

Aug. 11, 1955.

Kenneth C. Hawkins, Yakima, Chaffee & Aiken, Sunnyside, for appellant.

Gavin, Robinson & Kendrick, Yakima, Sensney & Davis, Prosser, for respondents.

OTT, Justice.

The plaintiff instituted this action against the defendants to recover damages for injuries sustained as the result of a truck and automobile collision. The driver of the defendants' truck will be referred to herein as though he were the sole defendant.

In his complaint, plaintiff alleged that the vehicles of the plaintiff and defendant were approaching from opposite directions; that the defendant operated his truck by suddenly and without cause veering it across the center line of the highway into plaintiff's lane of travel; that the plaintiff was thereby confronted with an emergency, and that, in an attempt to avoid an imminent collision, plaintiff, in the exercise of his best judgment under the circumstances, turned his automobile to the left and across the center line of the highway, but, due to the speed of the truck, the vehicles collided.

Defendant answered the complaint, denying any negligence on his part and alleging contributory negligence of the plaintiff as an affirmative defense. His cross-complaint for damages alleged that the plaintiff and cross-defendant was primarily negligent in several particulars. In his reply, plaintiff denied the material allegations of the answer, affirmative defense, and cross-complaint. Upon the issues thus joined, the cause was tried to a jury.

Defendant testified that he did not remember any details of the collision as, immediately before the accident, he was rolling down the window on the left side of his truck, and the next thing he knew he was pulling his head out of the windshield.

Plaintiff testified that he was traveling on his right side of the straight, dry highway at a lawful rate of speed; that it was broad daylight and the view ahead was unobstructed; that the defendant was driving on his own side of the road at a lawful rate of speed, until he was about 50 or 100 feet away; that defendant then abruptly turned his vehicle to the left and into plaintiff's lane of travel, and that plaintiff, because of the emergency, turned his car into the left lane of the highway in an attempt to avoid a collision. Debris from both vehicles was scattered on both sides of the center line, indicating that both were partially on the wrong side of the highway.

The jury returned a verdict for the defendant. From a judgment of dismissal, entered on the verdict of the jury, plaintiff has appealed.

Appellant assigns as error the failure of the trial court to give his requested instructions Nos. 4, 5, 6, and 9. The first three instructions deal specifically with the doctrine of imminent peril and emergency, as applied to appellant's sole theory of his cause of action. The fourth instruction deals with life expectancy. Error also is assigned to the court's denial of appellant's motion for a new trial, and to the entry of judgment of dismissal.

The appellant's principal contention in support of his assignments dealing with requested instructions Nos. 4, 5, and 6, is that, by the court's refusal to give them, his theory of the case was not adequately presented to the jury. By the pleadings and the testimony of the appellant, there is an admission that, because of the emergency caused by the negligent acts of the respondent, appellant was in fact over the center line of the highway. The entire theory of appellant's case is predicated upon the proper application of the emergency doctrine to the facts in this case.

In instructing the jury, the court covered appellant's theory by only a single general instruction. Each party is entitled to have his theory of a case presented to the jury by proper instructions, if there is any evidence to support it, and this right is not affected by the fact that the law is covered in a general way by the instructions given. Allen v. Hart, 1948, 32 Wash.2d 173, 176, 201 P.2d 145, and case and text cited; Adjustment Department, Olympia Credit Bureau v. Smedegard, 1952, 40 Wash.2d 76, 78, 241 P.2d 203, and cases cited; Billington v. Schaal, 1953, 42 Wash.2d 878, 881, 259 P.2d 634.

Where, as in this case, the appellant has but one single theory upon which he seeks to recover, that of justifying the driving of his automobile into respondent's lane of travel because of an emergency created by the respondent, and having timely requested an instruction thereon, he was entitled to have his theory of the case specifically presented to the jury by a special instruction that the emergency doctrine announced by the court applied to the appellant alone. The general instruction given confused the jury because it, in effect, informed the jurors that the emergency doctrine was applicable to the respondent, as well as to the appellant. Obviously, from the pleadings and the proof, the respondent was not entitled to the inference that the emergency doctrine, as announced by the court's general instruction, applied to him.

We therefore hold that the giving of a single general instruction on the emergency doctrine did not adequately present to the jury the appellant's sole theory of the case, as alleged in the pleadings, and upon which theory the issues were joined and proof was submitted at the trial.

Although any one of appellant's proposed instructions Nos. 4, 5, and 6 would have called to the attention of the jury the application of the law to appellant's theory of the case, we do not approve the precise wording used by the scrivener. Upon a retrial, the proposed instructions should be redrawn to more clearly and concisely present the law and appellant's theory of the case to the jury, following generally the rule announced in 1 Blashfield, Cyclopedia of Automobile Law and Practice (Perm. Ed.), 538, § 668, and 2 Restatement, Torts, 796, § 296.

The appellant next assigns as error the court's failure to give his requested instruction No. 9 on life expectancy.

In Thompson v. City of Seattle, 1949, 35 Wash.2d 124, 211 P.2d 500, this court held that the giving of such an instruction is proper, where there is evidence of either permanent injury, future loss of earnings, or future pain and suffering. From the evidence in the case at bar, the jury could have concluded that appellant was permanently injured. The medical testimony of appellant's doctor, a plastic surgeon, was in part as follows:

'Q. It is your advice that two more operations should be performed on his nose? A. That is correct. * * *

'Q. Do

you anticipate that you will get, in all reasonable probability, a good result from those two surgical procedures? A. I think we will get an adequate airway on both sides, proper drainage, proper restoration to a large degree on the air warming factor although not completely normal because of the amount of scar tissue present following the injury but we can get a satisfactory restoration so he will not have later complications. We would not reasonably expect him to have later complications. He always may. As far as appearance of his nose is concerned I will think we will have a nose which will be acceptable both to the public and I think to Raymond.'

From the above testimony, together with the testimony of other doctors, and of appellant concerning his continuous pain and suffering up to the time of the trial (a period of one year and ten months after the accident), we conclude that, under the facts and circumstances of this case, it was error to refuse to give the instruction on life expectancy.

The appellant was entitled to more specific instructions on his theory of the case, and the court erred in failing to instruct on life expectancy. It was therefore error to deny appellant's motion for a new trial and to enter judgment of dismissal.

The judgment is reversed, and the cause remanded with instructions to grant a new trial.

HAMLEY, C. J., and DONWORTH and WEAVER, JJ., concur.

SCHWELLENBACH, Justice (dissenting).

It should be remembered that, on the facts, the jury found for the defendant.

Error is assigned in the failure of the trial court to give appellant's proposed instructions Nos. 4, 5, and 6. They were:

'4. I instruct you that if you find that the defendant's automobile was approaching plaintiff's automobile and that plaintiff, acting as a reasonable man, could have anticipated that a collision was imminent, and if you find that in order to avoid such collision, and acting in the presence of an imminent collision, that the plaintiff turned to the left in an effort to avoid such imminent collision,...