Peterson v. King County

• Decision Date: 16 May 1939
• Docket Number: 27166.
• Citation: 90 P.2d 729,199 Wash. 106
• Parties: PETERSON et al. v. KING COUNTY.
• Court: Washington Supreme Court

90 P.2d 729

199 Wash. 106

PETERSON et al. v. KING COUNTY.

No. 27166.

Supreme Court of Washington

May 16, 1939

Department 2.

Action arising out of automobile accident by Frank R. Peterson Clarence Williams and Glen W. Austin against King County. From an order granting a new trial to defendant, the plaintiffs appeal and the defendant cross-appeals from order denying its motion for judgment notwithstanding the verdict.

Order granting a new trial reversed and cause remanded, with directions to enter judgment on verdict.

Appeal from Superior Court, King County; Malcolm Douglas, judge.

James R. Gates and Herbert L. Onstad, both of Seattle, for appellants.

B. Gray Warner and F. M. Reisehling, both of Seattle, for respondent.

GERAGHTY Justice.

On the morning of December 15, 1936, the plaintiffs, employed on a WPA project in King county, some twenty miles east of Kirkland, were on their way to work, riding in a Ford car owned and driven by the plaintiff Williams. Williams lived at Kirkland, and left there about 7:15. At Redmond, he was joined by Peterson and Austin. From Redmond, their course to the place where they were employed was over the Sunset highway.

The morning was cold and foggy. The fog varied in density; in places it would be light, and then heavy banks would be encountered. At about 7:45, while driving in one of these fog banks, so dense that the headlights of the car and a fog light, which it also carried, would not disclose an unlighted object for a greater distance than twenty feet ahead, the car collided with the rear of a motor-driven road grader owned by the defendant, King county, and operated by its employee Sidney Stevens. The plaintiffs sustained personal injuries and damage to the Williams' car, for all of which they brought this action.

At the time of the collision, the Williams' car was moving at the rate of about twenty miles an hour. The grader weighed about five and a half tons, was seven feet wide, and was moving at the rate of seven miles an hour on its own side of the road. It was equipped with dual pneumatic tires on the rear wheels and single tires on the front wheels. It had no electric head or tail lights. The only provision for lighting was an ordinary kerosene lantern with a red globe, which Stevens testified he had lighted Before leaving Redmond and fastened with wire to a bracket on top of the left fender. After the accident, the lantern was found extinguished on the pavement. Stevens testified that he looked back and saw the lantern was burning about a minute and a half Before the accident.

The county housed two graders at Redmond; the second was driven by Ralph Ingle. Both drivers left Redmond about 7:30, their destination being a dirt road where the graders were to be employed. To reach this road, they were required to drive easterly on the Sunset highway. The grader driven by Ingle was moving ahead of the one driven by Stevens. The plaintiffs testified that there was no light on the grader nearest them but they could see a red light or flare some three to five hundred feet ahead. It is admitted that the lantern carried by the forward grader was burning at all times.

The cause was tried to a jury. After the return of its verdict in favor of the plaintiffs, the defendant moved for judgment notwithstanding the verdict, and, in the alternative, for new trial. The court denied the motion for judgment notwithstanding, but granted the motion for a new trial for the assigned reason: '* * * that the court committed error of law in giving Court's Instruction number (8) eight by which the jury was instructed that a road grader was a vehicle under the laws of the State of Washington, in force at the time of the accident out of which the above action arose, and that said instruction was wrong for said reason and no other and should not have been given.'

The plaintiffs appeal from the order granting a new trial, and the defendant cross-appeals from the order denying its motion for judgment notwithstanding the verdict.

In instruction No. 8, the court, after informing the jury that the road grader was a vehicle within the meaning of the statutes regulating the use of motor vehicles upon the public highways, and was required to carry a red tail light, proceeded: 'If you find from the evidence that at the time and place of the collision there was insufficient light to render clearly discernible a person, vehicle or other substantial object on the highway at a distance of 500 feet ahead, then it was the duty of the defendant, King County, to carry at the rear of said grader a lighted rear or tail light capable of exhibiting at any time a red light plainly visible under normal atmospheric conditions for a distance of 500 feet toward the rear, and that failure on the part of King County, or its servant, to have such a rear or tail light, or to have the same lighted, would constitute negligence, and if you find that defendant County did fail to have such a rear light, or failed to have same lighted at said time, and if you further find that such negligence was the proximate cause of the collision and resulting injuries, if any, to plaintiffs, and that plaintiffs were not guilty of contributory negligence, then you are instructed that plaintiffs are entitled to recover in this action.'

While the 1937 legislature (Laws 1937, p. 835) enacted a comprehensive law prescribing the law of travel and regulating the operation and equipment of vehicles upon the public highways, superseding all earlier laws upon the subject, the issue in this case is to be resolved by reference to the laws in force at the time of the accident.

The 1927 legislature enacted chapter 309, p. 767, entitled: 'An Act relating to vehicles and regulating the operation thereof upon the highways of this state; providing for traffic signals and control thereof; providing for the proper equipment and devices to be used thereon, and for the inspection thereof; prescribing the powers and duties of certain officers, the collection, distribution and expenditure of fees; defining offenses and fixing penalties; making appropriations and repealing conflicting act and parts of acts.'

This act was embodied in Remington's Revised Statutes, chapter 3 of Title 41, §§ 6362-1 to 6362-57. Section 2 of the act contains a long schedule of definitions. Vehicle and motor vehicle are defined as follows:

'(a) 'Vehicle.' Every device in, upon or by which any person or property is or may be transported or drawn upon a public highway excepting devices moved by human power or used exclusively upon stationary rails or tracks.

'(b) 'Moter Vehicle.' Every vehicle, as herein defined, which is self-propelled.'

Chapter 180, Laws of 1929, p. 455, § 1, amended this difinition of 'vehicle' by substitution of the words 'muscular power' for 'human power.'

Section 27 of chapter 309, p. 795, as amended by chapter 156, Laws of 1933, p. 574, § 5, provides: 'Every motor vehicle and every trailer or semi-trailer which is being drawn at the end of a train of vehicles at the times and under the conditions specified herein shall carry at the rear a rear or tail light capable of exhibiting, at any time, a red light plainly visible under normal atmospheric conditions for a distance of 500 feet toward the rear * * *.'

Chapter 309, as amended, was effective at the time of the accident, and the appellants contend that, under its terms, a road grader was a motor vehicle and required to carry the prescribed rear light, and that the court properly so instructed the jury. The respondent, on the other hand, relies upon two earlier laws, chapter 96, p. 251, and c. 108, p. 322, Laws of 1921. Both chapters define 'motor vehicle' in identical terms as follows: "Motor vehicle' shall include all vehicles or machines propelled by any power other than muscular, used upon the public highways for the transportation of persons, freight, produce, or any commodity, except traction engines temporarily upon the public highway, road rollers or road making machines, and motor vehicles that run upon fixed rails or tracks.'

Chapter 108, codified as chapter 4 of Title 41, Rem.Rev.Stat. §§ 6363 to 6381, was limited in its application to the licensing and regulation of operators of motor vehicles, the enforcement of regulations by fines and forfeitures, and the employment and payment of a highway police force,--matters outside the purview of the 1927 act, and has no bearing upon our immediate problem.

The scope of chapter 96, p. 251, Laws of 1921, codified in chapter 2 of Title 41, Rem.Rev.Stat. §§ 6312 to 6360, was broadly outlined in § 1 of the act as follows:

'Except as otherwise provided by law this act shall be controlling:

'(1) Upon the registration and numbering of motor vehicles;

'(2) Upon the use of motor vehicles upon the public highways;

'(3) Upon penalties for the violation of any of the provisions of this act.'

The act of 1927, chapter 309, the title of which we have already quoted, and which, by its terms, was to be referred to as the regulation vehicle operation act, covered essentially the matters embraced within the act of 1921. While no part of the earlier act was repealed by direct reference, § 56 of the later law provided that all acts or parts...