Petersavage v. Bock

• Decision Date: 31 August 1967
• Docket Number: No. 38286,38286
• Citation: 72 Wn.2d 1,431 P.2d 603
• Court: Washington Supreme Court
• Parties: Walter PETERSAVAGE, Appellant, v. Earl BOCK and Jane Doe Bock, his wife, Individually and the marital community composed thereof, Respondents.

Page 1

72 Wn.2d 1

431 P.2d 603

Walter PETERSAVAGE, Appellant, v. Earl BOCK and Jane Doe Bock, his wife, Individually and the

marital community composed thereof, Respondents.

No. 38286.

Supreme Court of Washington, En Banc.

Aug. 31, 1967.

Bianchi & Tobin, Seattle, for appellant.

Martin, Shorts & Bever, Preston Niemi, Seattle, for respondents.

HALE, Justice.

Defendant Bock, driving on to a 5-lane arterial street, cut across three lanes in a left turn, to be struck at the rear of his 1953 Buick sedan by a car moving along the arterial. Did the court properly submit the negligence of either driver to the jury?

Holman Road, a 5-lane arterial running east and west in Seattle, has two lanes for eastbound traffic and two for westbound, with a center lane between them for vehicles turning left. A well-lighted, busy shopping area flanks both sides of the highway. Mr. Bock had completed his shopping at a grocery store in the shopping center on the northerly side of the highway at about 4:45 in the early evening of December 24, 1963. He intended, on leaving the parking area of the shopping center, to drive across the two westbound and the center lanes, make a left turn into an eastbound lane and proceed easterly on Holman Road. Before entering the arterial, he brought his automobile to a stop near the edge of the highway where the driveway from the parking center enters Holman Road. It was dark, his lights were on, and the streets were wet with rain. He said he could see both east and west for a distance of one and one-half blocks and the he waited until traffic coming from his left had gone by before starting across.

Mr. Bock testified that, at the moment he started across Holman Road, the closest vehicle approaching him from his right, that is, moving east along the arterial, was a block to a block and one half away. He saw the lighted headlights on this vehicle and noted other cars behind it, all of them with their lights on. He drove straight on to Holman Road, cutting across three or possibly four lanes of traffic, and made a sharp left turn on and into one of the eastbound lanes. He had completed the turn and moved only 50 feet easterly along the highway and was traveling at 20 miles per hour and accelerating at the moment when his vehicle was struck in the rear by the front of the Petersavage car.

Bock says he did not know whether the car whose lights he saw a block to a block and a half away when he began to cut across the highway were those of the Petersavage car, for he did not see the Petersavage vehicle before it struck him. His claim that the record provides substantial proof of plaintiff's contributory negligence is based on a pure assumption that the lights he saw coming toward him when he entered the highway were those of the Petersavage car; and assumes that, if it were that car, it would necessarily be traveling at a rate of speed greater than that fixed by statute in order to collide with him as he drove from his stopped position across three or four lanes into a left turn and moved 50 feet down the highway.

Mr. Petersavage, the plaintiff, said that he was driving his Volkswagen Karman Ghia easterly along Holman Road in the inside eastbound lane; it had been raining but the rain had stopped shortly before the accident. Although there were cars back of him and a few ahead, he described the traffic as fairly light for that particular district. He had been in the inside eastbound lane for a block or two before the collision, he said, and impact occurred where the highway is straight for a distance of 250 yards in both directions. He testified that he was driving 30-32 miles per hour and did not see the Bock car enter upon or cut across the highway, and that when he first caught sight of the Bock vehicle

It must have been practically right at the point of impact. He had shot out and was right in front of me coming out of the driveway and right into my lane of traffic, * * * Well, it happened so fast, I do remember trying to hit the brake and trying to swerve to the right.

He said he had been watching traffic in both directions and heard no horn or warning of any kind nor did he see the Bock car in front of him until virtually the moment of impact.

The only witness testifying directly as to the plaintiff's speed, other than the plaintiff himself, a Mr. Schuster, said that he saw defendant Bock start across the highway when the Petersavage vehicle was only about 100-150 feet away, and traveling easterly at what the witness described as a normal rate of speed. He said that the cars collided after Bock had completed his left turn and had moved only 50 feet down the highway. The record thus reveals no evidence of unlawful speed on the part of Mr. Petersavage other than Bock's mere inference that he had to have been driving in excess of the speed limit in order to arrive at the point of collision at the time and place of impact.

The trial judge submitted to the jury the issues of defendants' negligence and plaintiff's contributory negligence, and, from a judgment entered upon a verdict for the defendants, plaintiff appeals. Plaintiff assigns error to the court's denial of his motion for a directed verdict and to the court's giving of instruction No. 14, concerning the overtaking and passing of vehicles traveling in the same direction. Five other assignments of error appear superfluous to a solution of this case and will not be discussed.

Before entering upon and crossing the two westbound and the center lanes to turn east into the traffic Bock had a positive duty to stop, observe all traffic upon the arterial and yield the right of way to all traffic moving in either direction. He was obliged to see and appreciate the presence of all vehicles going in either direction and to allow them a fair margin of safety. The evidence conclusively established that he failed to see what was there to be seen on a straight, level, arterial street, or, if he saw it, failed as a matter of law to provide a fair margin of safety in entering, crossing and proceeding along the arterial. These are facts upon which reasonable minds could not differ, for there was no dispute in the evidence as to what Bock did or failed to do. RCW 46.60.190 (now RCW 46.61.205 and 46.61.365). The evidence thus established Bock's negligence as a proximate cause of the accident as a matter of law. Kerlik v. Jerke, 56 Wash.2d 575, 354 P.2d 702 (1960); Cooney v. Tacoma Moving & Storage Co., 155 Wash. 628, 285 P. 667 (1930).

But what of Petersavage's contributory negligence? Was there any evidence that he failed to maintain a proper lookout, or was driving at an excessive speed under the conditions then prevailing? He testified that he was driving 30-32 miles per hour on the arterial in a 35-mile-per-hour zone, looking particularly for traffic ahead and for cars entering the arterial from his right and also taking notice of approaching traffic. He did not see defendants' car cut across the arterial and turn in front of him. No evidence, nor inferences derivable therefrom, establishes that he was then driving at an excessive speed under the circumstances.

Defendants argue that, even if the evidence does not provide substantial evidence of Mr. Petersavage's excess speed, it does supply substantial evidence that he failed to maintain a proper lookout, but we cannot accept this reasoning. One driving upon an arterial highway has a right to assume that cars entering upon it will yield the right of way, and he is not obliged to anticipate that vehicles standing or approaching to enter will fail to yield the right of way. Only when it becomes...