Pollard v. Rossoe Mfg. Co.

• Decision Date: 06 October 1960
• Docket Number: No. 35190,35190
• Citation: 355 P.2d 979,56 Wn.2d 862
• Parties: Maurice A. POLLARD, as Executor of the Estate of Hannah Pollard, deceased, Appellant, v. ROSSOE MANUFACTURING CO., a corporation, Respondent.
• Court: Washington Supreme Court

Page 862

56 Wn.2d 862

355 P.2d 979

Maurice A. POLLARD, as Executor of the Estate of Hannah Pollard, deceased, Appellant, v. ROSSOE MANUFACTURING CO., a corporation, Respondent.

No. 35190.

Supreme Court of Washington, Department 2.

Oct. 6, 1960.

N. P. Moats, T. M. Rosenblume, Seattle, for appellant.

Carl P. Zapp, Leo A. Anderson, Seattle, for respondent.

HILL, Judge.

This is an appeal from a judgment of dismissal, entered after the plaintiff had rested, which raises an issue as to the conditions under which a disfavored driver may be entitled to recover in an intersection collision case.

The disfavored driver entered a northsouth arterial from the west, intending to cross the southbound traffic lanes, make a left turn and go north on the arterial. It must be assumed, for present purposes, that though the disfavored driver had not completed her left turn, she had crossed the southbound traffic lanes and was in the northbound lanes; and that, if the defendant's southbound oil truck had been entirely on its own side of the center line, there would have been no collision. The collision having occurred within the intersection, the issue is whether there is, as a matter of law, contributory negligence on the part of the disfavored driver barring recovery on her behalf. (The action is by the executor of her estate, the driver having been killed in the collision.)

Under our statute the disfavored driver had the duty to stop, to look out for approaching traffic on the arterial, and to yield the

'* * * right of way to any vehicles upon the arterial highway simultaneously approaching a given point within the intersection, whether or not his vehicle first reaches and enters the intersection * * *. [1955 c 146 § 4; 1937 c 189 § 90; RRS § 6360-90.]' RCW 46.60.170 (Sup.1959)

The fact that two cars collide within the intersection establishes that prior thereto they were simultaneously approaching a given point within the intersection, and that the disfavored driver had not yielded the right of way. Zorich v. Billingsley, 1958, 52 Wash.2d 138, 324 P.2d 255; Hauswirth v. Pom-Arleau, 1941, 11 Wash.2d 354, 119 P.2d 674.

The disfavored driver, under such circumstances, has been permitted to recover only where his contributory negligence has been excused by proof that, as a reasonably prudent driver, he was deceived by the wrongful operation of the vehicle having the right of way; or where, despite his own contributory negligence, the favored driver had the last clear chance to avoid the collision. McDonough v. Foster, 1955, 47 Wash.2d 229, 287 P.2d 336.

Neither deception nor last clear chance is suggested in this case; but appellant here urges a third basis for recovery on behalf of a disfavored driver, i. e., if the disfavored driver has made it safely across half of the arterial, he is no longer negligent, as a matter of law, if involved in a collision with vehicles which should have been traveling on the half of the arterial he has cleared.

We are satisfied that it was to avoid just such split second timings as would be involved in clearing half of an arterial, and the burden of choice which would be put on favored drivers by disfavored drivers trying to cross in front of them, that led the legislature to require disfavored drivers to look out for and give right of way to any vehicles upon the arterial highway simultaneously approaching a given point within the intersection.

The cases of Nelson v. Molina, 1959, 53 Wash.2d 412, 334 P.2d 170, and Bown v....