Poe v. Sheeley, 2044-III
| Decision Date | 20 April 1978 |
| Docket Number | No. 2044-III,2044-III |
| Parties | Elton E. POE and Juanita Poe, his wife, Appellants, v. Charles S. SHEELEY, John McNeill and Patricia McNeill George, Respondents. |
| Court | Washington Court of Appeals |
Philip M. Raekes, Raekes, Rettig & Osborne, Kennewick, for appellants.
Andrew Bohrnsen, John G. Schultz, Leavy, Taber, Schultz, Bergdahl & Sweeney, Pasco, for respondent McNeill.
Edward B. Critchlow, Critchlow, Williams, Ryals & Schuster, Richland, for respondent George.
The plaintiffs, Elton and Juanita Poe, sued several defendants for damages for personal injuries sustained by them as a result of an automobile accident. The jury returned a verdict for the plaintiffs as against two of the defendants, but found no liability on the part of the defendant John McNeill, who, with a pickup truck, had been pushing Patricia George, the driver of one of the vehicles involved in the collision. The Poes appeal, alleging that the trial court erred in (1) refusing to give their proposed instruction relating to the liability of the pushing driver under a joint-control theory, and (2) giving an instruction which did not refer to a joint-control theory.
The sole issue presented is whether the prior acts and conduct of defendants John McNeill and Patricia George were of such character as to require the trial court to instruct the jury on joint control as proposed by the plaintiffs. We answer in the negative.
On August 29, 1974, John McNeill agreed to repair the 1963 Chevrolet Impala of his friend, Patricia George. In order to get the vehicle started so that it could be driven up on blocks, they decided to have Mr. McNeill push Mrs. George with a pickup truck. This operation continued unsuccessfully on one of Richland's major arterials, VanGiesen Street. As the vehicles approached the intersection of Kingston Road and VanGiesen Street, the Impala briefly started, allowing Mrs. George an opportunity to accelerate, then the engine died. Mrs. George turned off on Kingston Road, made a U-turn, and returned to the intersection, stopping the car so that it protruded approximately 3 to 5 feet into the westbound lane of travel on VanGiesen. Mr. McNeill also pulled onto Kingston Road, made a U-turn, and stopped behind her. Both Mrs. George and Mr. McNeill testified that it was her immediate decision to turn onto Kingston Road. Although McNeill had earlier instructed her that, if they were unsuccessful in starting the Impala, she should get off the arterial, he gave her no direction to turn at that particular intersection or stop at that particular place.
After several cars had passed through the intersection, the defendant, Charles Sheeley, came around the curve from the same direction as Mrs. George and Mr. McNeill had traveled on VanGiesen. When he saw Mrs. George, he applied his brakes but skidded into the front side of her vehicle. The impact knocked his car into the oncoming lane of traffic where he struck the Poes' vehicle. The Poes sued Sheeley, George, and McNeill for their resulting injuries.
As to Mr. McNeill's liability, the trial court gave the following instructions:
A person who pushes a disabled vehicle is in control of that vehicle if that person pushes the vehicle to its position on the roadway where a collision occurs, and that person is responsible therefor.
On the other hand, a person who pushes a disabled vehicle is not in control of that vehicle once the pushing has stopped and the pushed vehicle continues to travel on the roadway and thereafter is stopped at a point on the roadway where a collision occurs, and that person is not responsible therefor.
The Poes excepted to the giving of these instructions. Instead, they proposed an instruction which incorporated the foregoing instructions but went one step further in advising the jury that they could also find that Mr. McNeill was liable based on the theory of joint right of control with Mrs. George over the disabled vehicle at the time of the accident. Their proposed instruction reads as follows:
Whether or not John McNeill is responsible for the conduct of the vehicle being driven by Patricia O'Bryan (George) depends on whether or not John McNeill was in control, in whole or in part, of Patricia O'Bryan's vehicle at the time the collision occurred.
A person is in control of a vehicle even though he is not in the driver's seat of the vehicle at the time a collision occurs if there exists between himself and the driver of that vehicle a joint right of control. As used in this instruction the words "joint right of control" means that each person, driver and non-driver, has an equal voice in the manner of performance and an equal right of control.
If you find that John McNeill had a joint right of control over the Patricia O'Bryan vehicle at the time the collision occurred, then John McNeill is responsible for the conduct of the Patricia O'Bryan vehicle regardless of whether or not he pushed that...
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