Mills v. Park
| Decision Date | 06 January 1966 |
| Docket Number | No. 37978,37978 |
| Citation | 409 P.2d 646,67 Wn.2d 717 |
| Court | Washington Supreme Court |
| Parties | Davis E. MILLS and Inez Mills, his wife, Appellants, v. Duane Lee PARK and N. M. Vernier and Alice Vernier, his wife, and N. M. Vernier, as guardian ad litem for Duane Lee Park, a minor, Respondents. |
Charles T. Morbeck, Kennewick, for appellants.
Hughes & Jeffers, Richard G. Jeffers, Wenatchee, for respondents.
This case arises from a rear-end automobile collision which occurred during a severe snowstorm in Douglas County, January 19, 1964, at 1:30 p.m., on State Highway No. 174, about 11 miles east of Leahy Junction. At the time of the collision, Davis E. Mills and his wife, plaintiffs (appellants), were traveling in an easterly direction. By reason of the poor visibility, they were proceeding at a speed of approximately 10 miles an hour, and were following a state highway snowplow some 810 feet to the east of the crest of Taylor Hill.
Duane Lee Park, defendant (respondent), 18 years of age, was driving the car of his grandfather, N. M. Vernier, in an easterly direction to the rear of plaintiffs' car. Vernier, as guardian ad litem for Duane, and Mrs. Vernier, were joined as defendants (respondents). For convenience, we will refer to the minor driver as if he were the sole defendant (respondent).
The defendant, traveling in the same direction as the plaintiffs, failed to observe the plainiffs' car in time to avoid the rearend collision. The plaintiffs were injured, and an action to recover damages from the defendant followed. At the conclusion of a jury trial, the court entered judgment on a verdict in favor of the defendant. Plaintiffs moved for a judgment notwithstanding the verdict or in the alternative for a new trial, which was denied. The plaintiffs appeal.
The trial court granted plaintiffs' motion to strike defendant's allegation of contributory negligence, from which no cross-appeal was taken. The issue of liability was thus restricted to the negligence of the defendant, if any, proximately resulting in the injuries sustained by the plaintiffs.
The plaintiffs contend the trial court erred in giving instruction No. 8, on the issue of sudden emergency, which states:
An automobile driver who, By the negligence of another and not by his own negligence, is suddenly placed in a position of peril and compelled to act instantly to avoid injury is not guilty of negligence if he makes such a choice as a reasonably prudent and careful person placed in such a position might make, even though he did not make the wisest choice. (Italics ours.)
Plaintiffs argue that the instruction erroneously injects the issue of plaintiffs' contributory negligence, which was not an issue in the case. We agree. The jury could reasonably infer therefrom that the negligence by the other person referred to was that of the plaintiff driver. The plaintiffs were thereby prejudiced since the defendant's allegation of the plaintiffs' contributory negligence had been stricken.
The plaintiffs also contend that instruction No. 8 was erroneously given because it was not supported by evidence of a sudden occurrence, for which the defendant was not responsible, creating an emergency which would justify the giving of the instruction. Defendant's counsel argues, however, that the instruction was properly supported by evidence under the theory alleged in defendant's pleadings that the defendant's view of the plaintiffs' car was obscured by the snow blown back onto the road as it was being removed by the state snowplow, thus creating an emergency and accounting for the sudden appearance of the plaintiffs' car ahead. This theory, however, is not supported by the record, as disclosed by the defendant's own testimony.
The defendant's testimony, which we paraphrase, was to the effect that he was passed by the plaintiffs' car, driving in an easterly direction, at Leahy Junction, about 10 miles west of the scene of the accident; that about one-half mile west of the crest of Taylor Hill, the defendant passed a state highway snowplow going westerly; that the visibility of the highway was so poor he had difficulty in avoiding a collision with the snowplow; that visibility by reason of the falling and blowing snow Continued to become increasingly worse; that 'it was like being in a white room' and he 'just couldn't see a thing.' He decreased his speed to about 20 to 35 miles per hour, and first observed the plaintiffs' car when it was 10 to 15 feet away. He swerved to the left but was unable to avoid skidding into the rear of plaintiffs' car.
In view of the foregoing testimony, we find no support for counsel's argument that defendant's view was Suddently obscured, prior to his approaching the plaintiffs' car, thereby creating a sudden emergency. The defendant's view of the road ahead was continuously obscured for a substantial distance prior to his seeing the plaintiffs' car; therefore, the giving of the emergency instruction under defendant's theory of an emergency, as framed in his pleadings, supra, was prejudicial to the plaintiffs, and the plaintiffs' motion for a new trial should have been granted.
The plaintiffs further contend that the new trial should be limited to the issue of damages only. We disagree. Whether the defendant was negligent in the operation of the automobile, under the circumstances, was properly a question for the jury.
For the guidance of the trial court in the retrial of the cause, we will now consider the remaining assignments of error.
The plaintiffs assign error to the trial court's refusal to permit the defendant to answer the question as to whether he had a valid driver's license at the time of the collision. We find nothing in the record to show a causal relation between the defendant's failure to have a valid driver's license and his asserted acts of negligence. The ruling of the trial court disallowing the inquiry was proper.
Plaintiffs assign error to the failure of the trial court to allow the introduction of the answer to an interrogatory stating the defendant had appeared in juvenile court and surrendered his driver's license, for the purpose of showing it was inconsistent with a statement in his deposition that he had never been convicted of any traffic violation and had never appeared in any court.
A juvenile court is not a criminal court. The inference that the defendant was required to...
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State v. Brousseau
...record” to obtain review. We decline to search for the applicable portion of the record in support of his argument. Mills v. Park, 67 Wash.2d 717, 721, 409 P.2d 646 (1966).10CONCLUSION ¶ 53 We hold that under a rebuttable presumption that all witnesses are competent to testify, due process ......
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Grider v. Quinn
...evidence relevant to a litigant's arguments. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 819, 828 P.2d 549 (1992); Mills v. Park, 67 Wn.2d 717, 721, 409 P.2d 646 (1966). We proceed as if Christopher Quinn did not raise the executive theory before the trial court. A party is preclud......
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Kappelman v. Lutz
...24 Mr. Lutz responds that he was entitled to the instruction because he was confronted by a sudden emergency placing him in peril, citing Mills v. Park.1 The emergency required him to make an immediate or instinctive choice between alternative courses of action without time for reflection a......
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...arose through no fault of the party seeking to invoke the doctrine. Brown, 100 Wash.2d at 197, 668 P.2d 571 (citing Mills v. Park, 67 Wash.2d 717, 409 P.2d 646 (1966)). "`The doctrine excuses an unfortunate human choice of action that would be subject to criticism as negligent were it not t......