Patterson v. Krogh

• Decision Date: 03 October 1957
• Docket Number: No. 34040,34040
• Citation: 316 P.2d 103,51 Wn.2d 73
• Court: Washington Supreme Court
• Parties: Carl W. PATTERSON, Respondent, v. Leo W. KROGH, Appellant.

Page 73

51 Wn.2d 73

316 P.2d 103

Carl W. PATTERSON, Respondent, v. Leo W. KROGH, Appellant.

No. 34040.

Supreme Court of Washington, Department 2.

Oct. 3, 1957.

Rehearing Denied Jan. 3, 1958.

John D. MacGillivray, Willard W. Jones, Spokane, for appellant.

Del Cary Smith, Del Cary Smith, Jr., Spokane, for respondent.

DONWORTH, Justice.

Respondent brought this action to recover damages for personal injuries sustained as a result of an automobile accident The trial court instructed the jury that respondent was guilty of contributory negligence as a matter of law, but submitted the case for their determination under both phases of the 'last clear chance' doctrine. The jury returned a verdict adverse to appellant, and after the court's denial of his motion for judgment n. o. v. or, in the alternative, for a new trial, he has appealed from the judgment entered on the verdict.

The testimony of the principal witnesses regarding the accident may be summarized briefly as follows:

At about one o'clock a. m., on August 12, 1955, respondent's Hudson automobile, driven by his brother-in-law, Herriman, stalled in the westbound lane of state primary highway No. 2H, which extends eastward from Spokane to the Washington-Idaho state line. Herriman coasted to a stop on the pavement, making no attempt to drive onto the graveled north shoulder of the road (which was about four feet in width). The parking lights were set, but the left rear taillight was not functioning.

Herriman stood in front of the stalled automobile and, as other cars approached from the east, he would step out and extend his arm, signaling his solicitation of assistance. As approaching cars would pass, he would step back to his sheltered position in front of respondent's automobile.

Respondent testified that he remained in his car for several minutes after it stopped and then got out of the right front door of the car. His left ankle had been fractured in an industrial accident several weeks before and was mending within a plaster of Paris walking cast which extended nearly to his knee. He testified that, after stepping out of his car, he employed one crutch for support purposes. He walked on the north shoulder of the highway to the rear of his car and then around to its left side near the cap on the gasoline tank. (En route, he stopped to jiggle the left rear taillight (which was not in operation) before stepping around the left rear corner of the car to check the gasoline tank. He decided against vibrating the car to ascertain the quantity in the tank, fearing that he might put too much weight on his fractured ankle.) He then turned his back on approaching traffic and started to walk along the left side of the car toward the front with the intention of joining his brother-in-law. He testified that he did not see but rather sensed the approach of a car, and backed against the left rear fender of his automobile until he was hit.

Appellant's testimony revealed that while he was driving his car as it was approaching respondent's car from the rear, he first saw respondent's automobile at a distance of about 200 yards, at which time he thought it was in motion; that at a distance somewhat in excess of 75 to 100 yards he noticed that it was stopped; and that, when approximately 25 to 30 yards away, he swerved out into the left (south) lane to pass it.

At the time his car started to pass, he noticed 'somebody dressed in light colored clothes, standing about the rear door of the Hudson.' He testified that the man he saw 'had his arm extended in about a half way out position, with his thumb out there and it looked like his thumb was out in a hitchhiking manner.' At the trial, appellant identified the man he saw as Herriman, denying emphatically that he saw respondent at all before the accident. He stated that he had not seen a crutch or crutches, but respondent testified that the one crutch he was using was under his right arm, away from appellant's approaching automobile. Herriman testified that he had been in front of the stalled automobile as appellant's car approached, and had not been near the rear door at all; that respondent was standing about 'a foot or a foot and a half' away from the left rear fender of his own car. Respondent testified that at the time of the accident he was wearing tan trousers and a light-colored silk shirt.

Appellant testified that the cars were 'adjacent to each other when I first felt the thud against my automobile and thought at that time I had probably hit someone, or something.' Respondent's injured body came to rest near the center of the highway, a short distance in front, and to the left, of his stationary car.

An examination of appellant's Studebaker sedan by a state patrolman indicated that it had made initial contact with respondent on or near an air vent hinged at the bank and protruding out from the side of the car. This vent was located behind the right front wheel well and immediately in front of the right front door. That door was scratched and depressed, and the right end of the rear bumper was damaged, with particles of plaster of Paris hanging from it. Respondent's Hudson had a dent in its left rear fender which, respondent testified, had not been on the car before the collision.

Photographs of the scene (taken shortly after respondent had been removed to the hospital) show a white substance on the highway near the left rear wheel of respondent's automobile. The state patrolman (who had been following appellant's vehicle for several miles, but did not see the impact) investigated the accident. He could not identify the substance, but stated, 'It could be plaster of paris * * *.'

The highway approaching the scene of the accident from the east was straight for several miles, with slight dips which would not obstruct a traveler's view. Measurements taken by the patrolman revealed that the paved roadbed was 20 feet in width; that the distance from the center hub of the left rear wheel of respondent's car to the center line of the highway was four feet eight inches; and that the distance from the north edge of the center line to the south edge of the eastbound lane of travel was nine feet ten inches. Appellant testified that the south shoulder of the road was about six to seven feet wide.

Appellant did not sound his horn before passing, nor did he blink his headlights. He testified that he was 'probably just over the yellow line' as he passed. The patrolman was unable to state whether all four wheels of appellant's automobile crossed the center line into the eastbound lane as he passed.

The evidence was conflicting upon the crucial issue of respondent's precise position at the moment of the initial impact.

Appellant assigns as error the giving of certain instructions by the trial court in its charge to the jury.

Appellant's argument in his brief in this court, in support of his exception to instruction No. 3 (assignment of error No. 4), is based upon an additional ground which was not presented to the trial court. A different basis for challenging an instruction from that urged in the trial court cannot be submitted for the first time on appeal to this court. Peerless Food Products Co. v. Barrows, Wash.1957, 307 P.2d 882, and cases cited. If, upon the ground asserted in the trial court, the instruction was error, then it certainly was not prejudicial.

Assignment of error No. 5 is directed to instruction No. 4, by which the jury was told:

"No person driving a vehicle upon a public highway outside of cities and towns and overtaking another vehicle proceeding in the same direction shal overtake such vehicle or drive within a distance of less than fifty feet of such overtaken vehicle for such purpose without first signaling his intention to pass by use of horn or other sounding device." (Italics ours.)

Appellant asserts that this instruction, given in the language of RCW 46.60.040 [cf. Laws of 1937, chapter 189, § 77, p. 892], constitutes reversible error, because there is no evidence that the respondent was 'proceeding rather than parked' and 'the jury was entitled to find negligence of appellant on issues entirely unsupported by evidence.' If the trial court had not, in instruction No. 7, distinctly limited the vital issues to the two phases of the last clear chance doctrine, this contention might be upheld.

The presumption of prejudice which arises out of the giving of an erroneous instruction (Franks v. Department of Labor & Industries, 1950, 35 Wash.2d 763, 773, 215 P.2d 416, citing Nordeen Iron Works v. Rucker, 1915, 83 Wash. 126, 129, 145 P. 219), may be overcome if the record, including all other instructions, when taken as a whole reveals that the jury could not have been misled or confused by it. See Brammer v. Lappenbusch, 1934, 176 Wash. 625, 634, 30 P.2d 947; Stockes v. Magnolia Milling Co., 1931, 165 Wash. 311, 314, 5 P.2d 339; and Herndon, v. City of Seattle, 1941, 11 Wash.2d 88, 99, 118 P.2d 421.

In this case, the instruction correctly stated the principle of law, and could be erroneous only if it had no applicability to the issues made by the pleadings or to the proof, and thus tended to confuse the jury. Neither appellant nor respondent was mentioned in it; nor was the jury advised that a violation of the statute constituted negligence per se, or that such negligence, if any, in order to form the basis of appellant's liability, was required to be a proximate cause of the resultant collision. We are unable to see how the jury could have been either confused or misled by the instruction. But if it could be reasonably said that they were, any such confusion was certainly removed by giving instruction No. 7 (hereinafter discussed), which appears to sufficiently protect appellant from the presumptive prejudice attached to the erroneous instruction.

We are unable to agree with appellant that the case of Leavitt v. De Young, 1953, 43 Wash.2d 701, 707, 263 P.2d 592, is determinative...