Pancoast v. McLean, 405--II

• Decision Date: 20 March 1972
• Docket Number: No. 405--II,405--II
• Citation: 6 Wn.App. 592,494 P.2d 1374
• Court: Washington Court of Appeals
• Parties: Glenn K. PANCOAST and Patricia Pancoast, husband and wife, Appellants, v. Archie M. McLEAN and 'Jane Doe' McLean, husband and wife, Respondents.

Page 592

6 Wn.App. 592

494 P.2d 1374

Glenn K. PANCOAST and Patricia Pancoast, husband and wife, Appellants, v. Archie M. McLEAN and 'Jane Doe' McLean, husband and wife, Respondents.

No. 405--II.

Court of Appeals of Washington, Division 2.

March 20, 1972.

Frederick G. Enslow of Griffin & Enslow, Tacoma, for appellants.

William J. Rush of Rush & Hayes, Tacoma, for respondents.

PEARSON, Judge.

This case involves an intersection collision in which the plaintiffs, Glenn K. Pancoast and wife, who were in the favored vehicle, were denied recovery by the jury. The sole question on appeal is whether there was sufficient evidence of excessive speed on their part to warrant submission of the issue of contributory negligence to the jury. We affirm.

The accident occurred on March 15, 1969 at the intersection of Flanegan Road and Bridgeport Way in Pierce County. Defendant, Archie M. McLean, was northbound on Bridgeport Way and commenced a left-hand turn onto Flanegan when his 1968 Pontiac stationwagon was struck on the right front side by plaintiff's 1967 Triumph, which was southbound on Bridgeport.

Bridgeport is a two-lane blacktop county road that is winding and hilly near the accident scene. The posted speed limit was 40 miles per hour. Approximately 350 feet north of the intersection is a curve in the highway which prevented either driver from seeing the other until the Pancoast vehicle rounded the curve.

One inference from Pancoast's testimony was that he drove at the speed limit of 40 miles per hour until the time of the collision. There was no evidence of skid marks. McLean testified that when he commenced his turn the Pancoast vehicle was not in sight. He was of the opinion that Pancoast was driving at an excessive rate of speed, estimated at 60 miles per hour. McLean acknowledged that he only had a fleeting period of observation of Pancoast, but his estimate of excessive speed was based upon the time it took Pancoast to traverse the distance from the curve to the intersection.

There was also evidence that the lighter Triumph automobile pushed the heavier stationwagon several feet sideways and there was extensive damage to both vehicles, as portrayed in photographic exhibits.

These factors were sufficient to raise an issue for the jury. While contributory negligence cannot rest on speculation or conjecture (Girson v. Carter, 76 Wash.2d 18, 454 P.2d 392 (1969)) it has been repeatedly stated that only in rare instances is the trial court warranted in withdrawing contributory negligence from the jury. Berndt v. Pacific Transport Co., 38 Wash.2d 760, 231 P.2d 643 (1951); Wines v. Engineers Limited Pipeline Co., 51 Wash.2d 487, 319 P.2d 563 (1957).

RCW 46.61.400 provides that when special hazards exist, a reasonable speed may be lower than the posted speed limit. Subsection (3) outlines certain hazards and conditions which require an 'appropriate reduced speed'--namely, 'when approaching and going around a curve, when approaching a hill...