Nelson v. Blake
| Decision Date | 27 October 1966 |
| Docket Number | No. 37558,37558 |
| Citation | 419 P.2d 596 |
| Court | Washington Supreme Court |
| Parties | Lawrence Rudolph NELSON and Jeanette Nelson, his wife, Appellants, v. Sherman BLAKE and Jane Doe Blake, his wife, Respondents. |
C. Edwin Elkins, Spokane, for appellants.
Smith, Smith & Smith, Del Cary Smith, Jr., Spokane, for respondents.
This appeal involves a single issue: Did the trial court err in refusing to find that the favored driver, at an uncontrolled intersection, was not contributorially negligent as a matter of law?
The facts are substantially as follows: January 23, 1962, compact snow and ice covered the streets, and the intersection of Sargent and Sinto streets in Spokane. At about noon, Sherman Blake, the disfavored driver, approached the intersection in his Volkswagen. Due to the icy condition of the road, he was traveling too fast to be able to yield the right of way to the favored driver, Lawrence Nelson. Blake's vehicle collided with Nelson's Corvair, which was approaching the intersection from Blake's right. As a result of the collision, the Nelson vehicle skidded forward 93 feet to the right of its course and came to rest on an adjacent lawn.
The court instructed the jury that Sherman Blake was guilty of negligence as a matter of law, and submitted to the jury the issue of the favored driver's contributory negligence.
From a judgment of dismissal entered upon a verdict for the defendants Blake, plaintiff Nelson has appealed.
The trial court, in passing upon the sufficiency of the evidence to submit the issue of contributory negligence of a favored driver to the jury, exercises no element of discretion. See Benton v. Farwest Cab Co., 63 Wash.2d 859, 389 P.2d 418 (1964); Fannin v. Roe, 62 Wash.2d 239, 382 P.2d 264 (1963); Miller v. Payless Drug Stores of Washington, 61 Wash.2d 651, 379 P.2d 932 (1963). We have often said that the trial court must consider the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party, and that such evidence must be accepted as true. Pearsall v. Paltas, 48 Wash.2d 78, 291 P.2d 414 (1955), and cases cited; Simmons v. Kalin, 10 Wash.2d 409, 116 P.2d 840 (1941). If the court finds there is substantial evidence to sustain the issue, as distinguished from a mere scintilla of evidence, the motion must be denied. Anderson Feed & Produce Co. v. Moore, 66 Wash.2d 237, 401 P.2d 964 (1965); Trudeau v. Haubrick, 65 Wash.2d 286, 396 P.2d 805 (1964).
The test of what constitutes 'substantial evidence' is whether men of ordinary reason and fairness could find that the most favorable evidence sustains the truth of the fact to which the proof is directed. Arnold v. Sanstol, 43 Wash.2d 94, 260 P.2d 327 (1953); Evans v. Yakima Valley Transportation Co., 39 Wash.2d 841, 239 P.2d 336 (1952), and cases cited; 9 Wigmore on Evidence § 2494 at 296 (3d ed. 1940). The test is not satisfied by a scintilla of evidence which merely creates a suspicion or remote possibility that the fact to which it is directed is true. See Evans v. Yakima Valley Transportation Co., supra; Smith v. Yamashita, 12 Wash.2d 580, 123 P.2d 340 (1942), and case cited; National Labor Relations Board v. A. S. Abell Co., 97 F.2d 951 (4 Cir. 1938).
The evidence relating to the contributory negligence of the favored driver, Lawrence Nelson, considered in the light most favorable to the disfavored driver, Sherman Blake, was substantially as follows: State Trooper Glenn Rudy, who had driven over the icy roads to the scene of the accident, questioned Lawrence Nelson as to his speed. Officer Rudy testified:
Q. You talked to Mr. Nelson, did you? A. Yes. Q. Did you ask him what his speed was? A. Yes, I did. Q. What did he reply? A. 25 miles per hour.
Officer Rudy also testified as follows:
Q. Now, I will ask you, if you know, what is the maximum legal speed in that particular area? A. This is a County Road, and a residential area, the speed limit is 25 miles an hour. Q. Do you consider that the maximum legal speed, or the safe speed in view of the conditions existing and the slipperiness of the the streets? A. No sir.
With reference to the distance which the Nelson automobile skidded after the impact, Officer Rudy testified that 'Mr. Nelson's * * * vehicle * * * traveled approximately 31 paces, or 93 feet,' and onto an adjacent lawn.
Sherman Blake testified that he had observed the Nelson vehicle approaching when it was '100 feet' from the intersection. He further testified:
Q. * * * Now how fast do you say you thought he was going? A. Oh about twice as fast as I was, I'd say. Maybe forty miles an hour. Q. You were going 20 to 25 and he was going 40 you feel? A. I think so.
Lawrence Nelson testified on direct examination that he was '30 feet' from the intersection when he first saw Mr. Blake's vehicle approaching. On cross-examination, he testified:
Q. Did you hurry through then? A. No, I just proceeded to go on. I probably speeded up a little bit to get through. * * * Q. What do you think a safe speed was that day? A. I don't think it was any more than 20 to 25. Q. You think the speed limit on that day was a safe speed crossing the intersection? A. About 20 to 25, just depends on how good it was to slow down when you came to one. Q. You mean you feel it would be a safe speed if you slowed down when you got to an intersection? A. Yes. Q. Slowed down to what speed? A. about 15.
RCW 46.48.010 provides:
Every person operating or driving a vehicle of any character upon the public highways of this state shall operate the same in a careful and prudent manner and at a rate of speed no greater than is reasonable and proper under the conditions existing at the point of operation, taking into account the amount and character of the traffic, weight of vehicle, grade and width of highway, condition of surface and freedom of obstruction to view ahead and consistent with any and all conditions existing at the point of operation so as not to unduly or unreasonably endanger the life, limb, property or other rights of any person entitled to the use of such public highways.
In Ashley v. Ensley, 44 Wash.2d 74, 77, 265 P.2d 829, 831 (1954), we said:
The maximum speed limit of fifty miles an hour for the zone in question, is beside the point. Every person must operate his vehicle at a speed reasonable and proper under the existing conditions and circumstances. * * * There is no legal impediment to a man driving Negligently at ten miles an hour in a fifty-mile zone, where the circumstances require a slower speed. * * *
In Robison v. Simard, 57 Wash.2d 850, 852, 360 P.2d 153, 154 (1961), we held:
A reasonable person might conclude from the evidence that the appellant was driving too fast under the circumstances, even though not exceeding the speed limit. The maximum statutory rate of speed is not alway permitted by law. RCW 46.48.010. (Citing cases.) A driver must operate his vehicle in a careful and prudent manner under prevailing conditions. That appellant was not maintaining a lookout upon his approach to the intersection is a justifiable conclusion from the proofs. Such were the conflicts which presented the issue of the appellant's contributory negligence, upon which the jury was properly instructed.
In Day v. Frazer, 59 Wash.2d 659, 369 P.2d 859 (1962), we held that the testimony of a disfavored driver, who had observed the favored driver for a distance of only five or six car lengths, went to the weight of the evidence relative to speed, rather than to its competency.
Applying these tests, decisions, and the applicable law to the record before us, we hold that the court did not err in submitting to the jury the question of the contributory negligence of the favored driver, Lawrence Nelson. The most favorable evidence established that a speed of 25 miles an hour was unsafe under the conditions then prevailing; that Mr. Nelson saw the Blake vehicle approaching the intersection; that he did not decrease the speed of his vehicle as he approached the intersection, but accelerated it, and that Mr. Blake observed Mr. Nelson's vehicle when it was 100 feet from the intersection, approaching at a speed of 40 miles an hour. This testimony, together with the physical evidence of the skidding of the Nelson automobile for a distance of 93 feet, constituted substantial evidence, which, if believed by the jury, would sustain a finding that Lawrence Nelson was guilty of contributory negligence. That the jury believed the evidence of the state trooper and Sherman Blake is established by the verdict for Sherman Blake.
The judgment is affirmed.
I accept the well-stated proposition in the majority opinion that the trial court exercises no element of discretion in passing upon the sufficiency of the evidence and that all favorable inferences from the evidence must be given the nonmoving party, but, in my view, this case falls, not under the foregoing principle, but rather within the rules so recently restated in Boley v. Larson, Wash. 419 P.2d 579 that
Contributory negligence is an affirmative defense; the burden of proving it rests on the defendant. If there is no evidence of contributory negligence, it is an error of law to submit the issue to the jury. * * *
My review of the record shows no substantial evidence of contributory negligence to submit to the jury under these principles, and, accordingly, I dissent.
If there is not substantial evidence to support an issue of fact, it ought not be submitted to the jury. In Cote v. Allen, 50 Wash.2d 584, 313 P.2d 693 (1957), this court held that, although each party is entitled to have his theory of the case presented to the jury by proper instructions when there is evidence to support it, the court should not instruct upon an issue or theory in the absence of Substantial evidence concerning the theory or issue. Shortly thereafter, in White v. Peters, 52 Wash.2d 824, ...
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Nelson v. Blake
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