Mondor v. Rhoades

• Decision Date: 17 October 1963
• Docket Number: No. 36567,36567
• Citation: 63 Wn.2d 159,385 P.2d 722
• Court: Washington Supreme Court
• Parties: Shirley MONDOR and Nadine Mondor, his wife, Appellants, v. Lois RHOADES, Respondent.

Page 159

63 Wn.2d 159

385 P.2d 722

Shirley MONDOR and Nadine Mondor, his wife, Appellants, v. Lois RHOADES, Respondent.

No. 36567.

Supreme Court of Washington, En Banc.

Oct. 17, 1963.

Tonkoff, Holst & Hopp, Yakima, for appellants.

Palmer, Willis & McArdle, Yakima, for respondent.

HALE, Judge.

Early in the evening of November 10, 1960, two automobiles collided in an uncontrolled, open, right-angle intersection in Yakima. The streets were damp, but it was not raining. It was dark; both cars had their headlights on; the speed limit for each vehicle was 25 miles per hour.

Shirley Mondor, plaintiff, was driving his car west on West Prasch Avenue; his wife was a passenger, seated on the right front seat. He testified that he was driving 20 miles per hour when approaching the South First Avenue intersection, but slowed almost to a stop at a point about one-half car length before entering it. He said that he looked first to his left, saw it as clear, then looked to his right and first observed the headlights of defendant's approaching car at a point when it was about two-thirds of a block away. Plaintiff Mondor said that he continued into the intersection at a speed of about 5 miles per hour, increasing to about 12 miles per hour, and did not see defendant's car again until it was 20 feet away, at which point he estimated it was coming at the rate of 50 to 60 miles per hour. He could have stopped his car within 2 or 3 feet had he applied his brakes. He said that his car's right front rammed the left front of the defendant's car.

Lois Rhoades, the defendant, stated that she had made a right turn from Lenox Avenue on to First Avenue, one block north of the accident, at 10 miles per hour, and proceeded south at about 20 miles per hour on First Avenue into the intersection with West Prasch Street when her car was struck on the left front fender by the Mondor car.

Her friend, Betty Jones, was a passenger in the right front seat; they had been shopping together earlier. They intended to stop and pick up another passenger at an address about 3 blocks from the intersection.

Defendant Rhoades stated that, as soon as her vision was clear of view-obstructing houses as she approached the intersection at about 20 miles per hour, she looked first to her right at a point 50 to 60 feet from it and saw that it was clear; she then looked to her left to see the plaintiffs' car for the first time. It was already in the intersection, about a car length away, approaching from her left. She saw only the headlights of the car and said that she had time neither to apply her brakes nor to swerve. She agreed with plaintiff driver that his car struck her car at the left front fender.

The intersection was 33 feet square. Impact occurred at a point 12 feet 10 inches from the extended north curb line of West Prasch, and 10 feet 6 inches from the extended west curb line of South First, and hence within the respective lanes of travel for each vehicle. The resultant of the two forces carried the vehicles to the southwest corner of the intersection. Extensive personal injuries and property damages resulted.

Raymond Chavers, a truck driver, unacquainted with any of the parties to the accident, called as a witness by plaintiff, testified that he was standing at an upstairs window of a two-story home looking at the street and saw the collision. He said that the Rhoades car rounded the 90-degree corner of Lenox and First Avenue one block north of the point of collision at 30 to 35 miles per hour and accelerated to 55 to 65 miles per hour within the block to the point of collision.

There were no skidmarks, no physical evidence that either party applied brakes or took evasive action. Physical aspects of the accident, including distances traveled after impact, damages to the vehicles, and the situations of the parties before the accident, were more consistent with defendant's version of her speed at 20 to 25 miles per hour than with plaintiff driver's impression of her speed at 50 to 60 miles per hour gained by the latter during a split-second glance while defendant's car was bearing down on him within a 20-foot time-distance interval.

Thus we have a classic right-of-way case, with defendant in the role of favored driver, and plaintiffs disfavored under the law. Plaintiffs sought recovery under the deception rule of Martin v. Hadenfeldt, 157 Wash. 563, 289 P. 533, and the application of the doctrine of last clear chance. Defendant cross-claimed by virtue of the right of way accorded her by statute. From a judgment on a verdict for the defendant without award of damages, the plaintiffs appeal.

Plaintiffs, as appellants, assign error to the court's refusal to give certain instructions to the jury, and to the court's withdrawal of the last-clear-chance doctrine in both its phases from consideration by the jury.

Plaintiffs first assign error to the court's refusal to give their proposed instruction No. 6, ¹ pointing to Robison v. Simard, 57 Wash.2d 850, 360 P.2d 153, and Watson v. Miller, 59 Wash.2d 85, 366 P.2d 190, to support it. The Robison case, supra, we find to be authority for the proposition that, where there is substantial evidence of it, the question of the contributory negligence on the part of the favored driver should be submitted to the jury. It can hardly be said to authorize plaintiffs' requested instruction No. 6.

Not so, however, with the Watson case, supra, where the requested instruction is approved. In that case, the favored driver, the plaintiff, received an adverse verdict, presumably under this instruction, and this court in reviewing the record concluded that the defendant should have been held negligent as a matter of law but that it was not error to give the requested instruction. The cause was remanded to allow plaintiff a new trial on all issues except that of defendant's negligence.

The requested instruction, though seemingly proper in the Watson case, supra, now appears to have many faults. We doubt that the jury should be told that the favored driver cannot proceed blindly into an intersection, for neither should the disfavored driver.

The instruction starts out in an argumentative vein, and proceeds to express the favored driver's duties argumentatively throughout. Then, too, the word blindly is more contentious than descriptive, as is the case with most adverbs when used in instructions. ² Moreover, we are doubtful if judges ought to tell people how to act in emergencies, by advising them to stop, or to swerve to one side, or over to the other side, according to the dictates of reasonable care. In some cases, prudence might require a driver to accelerate so as to avoid the impact--or even to reverse his car. Proposed instruction No. 6 is not a good candidate for inclusion in a proposed volume of uniform jury instructions, and it was not error for the trial court to refuse it.

Appellants assign error to the court's striking out the last-clear-chance doctrine. A review of the facts and the split-second time intervals governing as the two cars approached each other in the nighttime demonstrates that the last clear chance was not shown or to be inferred. Moreover, plaintiffs, in approaching and entering the intersection at an admitted speed of 5 miles per hour, had an equal if not better chance than defendant to avoid the accident. Glasper v. Westbo, 59 Wash.2d 596, 369 P.2d 313 (1962); Conklin v. Seattle, 58 Wash.2d 189, 361 P.2d 578 (1961); Everest v. Riecken, 30 Wash.2d 683, 193 P.2d 353 (1948).

The routine nature of this case, involving as it does a major source of litigation, induced this court to request counsel at bar, counsel with similar cases pending, and the University of Washington Law School to give us the benefit of their views on a reexamination of the fourth, or deception, rule of Martin v. Hadenfeldt, 157 Wash. 563, 289 P. 533. We wondered if the deception rule was meeting the test of time. We thought that possibly the numerous cases applying it and construing it had caused a kind of judicial erosion to set in that had at long last destroyed the deception requirements and left the parties where the rule originally found them, in a race for the intersection with the judgment to the victor. And we wondered if perhaps an absolute rule ought not to be adopted in the interest of certainty to assure that statistically the driver having the right of way at law would have it in the courts. To our queries, the lawyers have responded most graciously and effectively, and we are further grateful to Professor John W. Richards for a paper prepared by him in analysis of the right-of-way rule at uncontrolled intersections. ³

Should the deception rule of Martin v. Hadenfeldt, supra, be abandoned and absolute liability be fixed upon the disfavored driver?

From our own research, we would say that the first attempt by statute to declare rules of the road for automobiles took place in Washington in 1905, Laws of 1905, chapter 154, p. 293. This act merely established speed limits and gave horses the right of way--particularly frightened horses--and directed one to pass both approaching and overtaken vehicles or horses on the right. The act was silent as to intersections except to limit speeds at crossings and at cross-walks to four miles per hour. In 1909, the speed limit at intersections was incorporated into the newly adopted criminal code, and to pass through an intersection within a city or town at more than four miles per hour was declared to be a misdemeanor. Again the legislature made no attempt to establish rights of way. See Laws of 1909, chapter 249, § 279, p. 976. Nor did the Laws of 1915, chapter 142, p. 385 (our first comprehensive motor vehicle code), containing for the first time a reference to rules of the road (§ 26), establish preference at intersections other than to enjoin all drivers to pass to the right of the center when going through or turning to the right or the left at the...