McGovern v. Greyhound Corp.

• Decision Date: 26 March 1959
• Docket Number: No. 34718,34718
• Citation: 337 P.2d 290,53 Wn.2d 773
• Parties: Marie M. McGOVERN, as Administratrix of the Estate of Edward D. McGovern, deceased, Appellant, v. GREYHOUND CORPORATION, a corporation, and Everett W. Coffey and Jane Doe Coffey, whose true and Christian name is unknown, Respondents.
• Court: Washington Supreme Court

Page 773

53 Wn.2d 773

337 P.2d 290

Marie M. McGOVERN, as Administratrix of the Estate of Edward D. McGovern, deceased, Appellant, v. GREYHOUND CORPORATION, a corporation, and Everett W. Coffey and Jane Doe Coffey, whose true and Christian name is unknown, Respondents.

No. 34718.

Supreme Court of Washington, Department 1.

March 26, 1959.

Rehearing Denied June 18, 1959.

John E. Belcher, Will G. Beardslee, Lawrence W. Wanichek, Seattle, for appellant.

Rosling, Williams, Lanza & Kastner, Seattle (Henry E. Kastner, Seattle, of counsel), for respondents.

HUNTER, Judge.

This is a wrongful death action arising out of an automobile and bus collision which occurred outside the city limits of Renton, on January 21, 1957, at about 5:30 p. m. The bus was owned by the Greyhound Corporation and was driven by one Everett W. Coffey in a southerly direction on state primary highway No. 5 (also known as 92nd avenue south). As the driver approached the intersection of the highway with 151st street, he slowed down for the purpose of discharging passengers, and stopped the bus at the intersection on the right side of the road. He pulled off as far as physical conditions would permit, being limited by a ridge of snow, leaving four feet of the eight-foot width of the bus on the paved portion of the blacktop highway. The posted speed limit was thirty-five miles an hour. At this point, the road is straight and level, and there was no physical obstruction which would impair visibility. Mr. Elfors, one of the passengers who had gotten off the bus, testified on cross-examination, '* * * it was, I would say, about half dark and half light. * * * Q. You could see good, could you? A. Yes. * * *' Mr. Gregoris, operator of the Richfield service station near 153rd street, testified on cross-examination, '* * * Q. So you looked from a spot about 300 feet away and you looked over here and saw the bus standing here (indicating). * * * Q. You had no trouble seeing the bus? A. No. * * *' Snow had fallen earlier in the day but there was no snow on the traveled portion of the highway which was wet but not icy. The bus driver testified that the bus had all of its taillights burning, plus the two brake lights; that he usually stopped at this location; also sometimes stopping 150 feet farther down the road where he could have stopped the bus, on that evening, completely off the paved portion of the highway.

After the passengers were discharged from the bus and prior to its pulling out onto the highway, it was struck from the rear by decedent's automobile, he being the sole occupant. The operator of the bus, who was the only eyewitness to the accident, testified that prior to starting out, after discharging the passengers, he looked into his rear-view mirror and saw decedent's automobile 100 to 150 feet away. The automobile struck the left-rear corner of the bus, taking the impact on its right-front side. After the collision, the automobile remained behind the bus. It left skid marks of 37 feet; it was damaged beyond repair; and the driver died as a result of the collision. This action was instituted by the administratrix of decedent's estate against the Greyhound Corporation and the driver of the bus. The jury returned a verdict for the defendants. Plaintiff appeals.

Appellant assigns error to the court's refusal to admit certain evidence; in failing to follow certain rules of procedure; in giving certain instructions; in entering judgment on the verdict; and in denying appellant's motion for a new trial.

Appellant first contends the court erred in denying her an opportunity to introduce evidence that, shortly after the fatal collision, respondent Greyhound Corporation erected a 'bus stop' sign on the highway near 153rd street by a Richfield service station, where buses could stop and where there was sufficient parking area for all wheels of the bus to be removed from the traveled portion of the highway.

The appellant contends that this evidence was admissible for the limited purpose of showing the practicability of being able to stop the bus at this point, 150 feet farther down the highway, with all wheels off the traveled portion of the roadway. The appellant argues that it therefore comes within an exception to the general rule of the inadmissibility of evidence of alterations or precautions taken after an accident. With this we agree, but the issue before the court was not whether it was practicable or feasible to park the bus off the highway at this point. The ability to park the bus at this place and in this manner was admitted. Therefore, there being no issue of practicability involved, the trial court properly excluded this evidence. Hatcher v. Globe Union Mfg. Co., 1932, 170 Wash. 494, 16 P.2d 824.

Appellant contends the trial court erred in failing to allow counsel to take exceptions to the instructions prior to their being read to the jury, in pursuance of Rule of Pleading, Practice, and Procedure 10, 34A Wash.2d 29, as amended, effective October 24, 1955. This is a salutary rule placing the court and counsel in a more favorable position to keep the trial free from error by permitting any necessary corrections of the instructions to be made before they go to the jury. This rule should be followed by the trial courts, and error was committed in this instance by the court's failure to do so. However, no exception having been taken to the court's statement 'the exceptions will be taken under the old rule after the jury has retired' the appellant cannot now raise the matter for the first time on appeal. The appellant cannot gamble on the outcome of the trial and raise his objections later. Nelson v. Martinson, Wash.1958, 152 Wash.Dec. 611, 328 P.2d 703, 1958. Moreover, there is nothing in the record showing any prejudice to the appellant resulting from this procedure adopted by the trial court.

Appellant contends the court erred in giving instruction No. 6, which reads as follows:

'You are instructed that under the foregoing statute there is no evidence of any negligence on the part of the defendant in the manner in which he parked at this particular place, nor is it contended that there was less than 300 feet of clear view in each direction. The only charge of negligence for your consideration, as against the defendant, is the question of whether or not the defendant should have continued beyond this street and parked at the service station where, it is contended, it was possible for defendant to stop with all wheels off the paved portion of the highway. I instruct you that under this statute busses are not forbidden to make stops where it is reasonably necessary to discharge passengers, even though it is not possible at the particular point to stop with all the wheels of the bus off the highway.

'The question is a question of reasonable and ordinary care: Would all ordinary, prudent and careful bus...