Poston v. Mathers

• Decision Date: 04 December 1969
• Docket Number: No. 39895,39895
• Citation: 462 P.2d 222,77 Wn.2d 329
• Court: Washington Supreme Court
• Parties: Henry F. POSTON, Sr., and Myrtle Poston, husband and wife, and Henry F. Poston, Sr., as Guardian ad Litem for Peggy Poston, a minor, Appellants, v. Thomas F. MATHERS and Jane Doe Mathers, his wife, Respondents.

Page 329

77 Wn.2d 329

462 P.2d 222

Henry F. POSTON, Sr., and Myrtle Poston, husband and wife and Henry F. Poston, Sr., as Guardian ad Litem for Peggy Poston, a minor, Appellants, v. Thomas F. MATHERS and Jane Doe Mathers, his wife, Respondents.

No. 39895.

Supreme Court of Washington, En Banc.

Dec. 4, 1969.

Skoog, Mullin & Cooper, Thomas R. Garlington, Tacoma, for appellants.

Davies, Pearson, Anderson, Pearson & Gadbow, Vincent L. Gadbow, Tacoma, for respondents.

HILL, Judge.

Appellant Henry Poston was the driver of a car in which his wife and minor child were passengers. The Poston vehicle was eastbound on 96th Street in the city of Tacoma. Park Avenue, an arterial, intersects 96th Street at right angles. The intersection is controlled by two stop signs on 96th Street and a flashing red light suspended above the intersection. Appellant Poston came to a stop at the intersection and noted the respondent Mathers' car approaching from the opposite direction on 96th Street. Respondent's car was then about two blocks away.

Appellant Poston activated his left turn indicator checked for crossing traffic on Park Avenue, and commenced his turn. As he crossed the center line, his wife cried: 'He's not going to stop.' Poston saw Mathers' car entering the intersection, and tried to accelerate to avoid the collision, but Mathers' car struck his vehicle on the right front door and rear quarter panel.

Respondent Mathers testified that as he approached Park Avenue he was traveling at 30 to 35 miles per hour until he was 'on the stop light almost.' He did not see either the flashing red light or the Poston car until he was about 100 feet from the intersection. There was testimony that respondent Mathers was under the influence of alcohol.

Mr. Poston testified that he could not tell whether the oncoming car was going to stop, that he didn't assume that the Mathers car would stop, but that under normal conditions it should have stopped. Mr. Poston was halfway across the white line making his left turn before he realized that the car was not going to stop.

As a result of the accident, Mr. Poston, his wife, and his daughter were injured. Poston brought suit. At the close of defendant's case, the trial court directed a verdict that Mathers was negligent and that a verdict be returned in favor of the Poston child for her general damages. Cross motions as to contributory negligence of Mr. Poston were denied, and the issue submitted to the jury. The jury then returned a verdict denying recovery to Mr. and Mrs. Poston and set the child's damages at $500. Motion for a new trial was denied. Poston has appealed from all portions of the judgment, including the award of damages.

Error is assigned to the denial of the motion to remove Mr. Poston's contributory negligence from the jury's consideration, to the instructions given and denied relating to the respective duties of appellant and respondent, and to the giving of an instruction stating an erroneous formula as to conduct which would constitute contributory negligence.

The first assignment of error cannot be supported. Before the trial court can remove the contributory negligence issue from the jury's consideration, the evidence must be such that all reasonable minds would agree that the plaintiff had exercised the care which a reasonably prudent man would have exercised for his own safety under the circumstances. Bauman v. Complita, 66 Wash.2d 496, 403 P.2d 347 (1965). Mrs. Sandra Wolbert, Mr. Poston's married daughter, who was a passenger in a car immediately behind appellants, testified that from her observation of respondent's car before the accident, she knew that it was not going to stop. Mrs. Poston also testified that she realized before the accident that the respondent's car was not going to stop. There was clearly evidence upon which reasonable minds could differ as to Mr. Poston's contributory negligence, and the issue was properly submitted to the jury.

Appellants next assign error to the instructions relating to the respective duties of appellant driver and respondent, which are set out below. ¹ As part of the same argument appellants assign error to withdrawal of the court's instruction No. 9 over their objection, and error is also assigned to the failure to give the instruction which appellants offered, which was modeled upon WPI 70.06. ²

The appellants contend that the net effect of the omissions and errors was to deprive them of a proper statement of the relative duties of the two drivers. We agree.

It is error to instruct the jury that all rights-of-way are relative and that the duty to avoid accident at intersections rests upon both drivers, unless such instruction is qualified by the statement that the primary duty to avoid collision rests upon the disfavored driver. Huber v. Hemrich Brewing Co., 188 Wash. 235, 62 P.2d 451 (1936). A favored driver on an arterial protected by a stop sign has one of the strongest rights-of-way which the law allows. Zahn v. Arbelo, 72 Wash.2d 636, 434 P.2d 570 (1967). Such a driver is entitled to rely heavily upon his right-of-way, although he is still required to exercise ordinary care.

The problem posed by the failure to instruct on respondent's duty is not difficult to describe. Neither negligence nor contributory negligence exists in the abstract. If the jury was not properly instructed and was unaware of the duty which respondent breached, it was unable to determine rationally if appellant's breach of his related duty contributed to the cause of the accident. Accord: Izett v. Walker, 67 Wash.2d 903, 410 P.2d 802 (1966) (rear-end collision--refusal to instruct on duty of following driver).

The respective rules of the road governing the duty of each driver have been set out in the margin. ³ It will be seen from examination of those rules that a primary duty to avoid this accident rested upon Mathers, the respondent. The appellant would have been under a duty to avoid the accident only if the Mathers vehicle were so close to the intersection as to constitute an immediate hazard. Given the stop sign which Mathers faced, his vehicle would have constituted such a hazard only if appellant Poston had, or should have, realized that Mathers was not going to stop.

A person using the highway is entitled to assume that other persons thereon will obey the traffic laws and he has the right to proceed upon such an assumption until he knows, or in the exercise of reasonable care should know, to the contrary. Only when it becomes apparent, or should have become apparent, to the favored driver that the disfavored driver will not yield is the favored driver required to react to the danger. Petersavage v. Bock, 72 Wash.2d 1, 431 P.2d 603 (1967).

Appellant Poston's theory of the accident was that he did not observe any indication that Mathers was not going to stop until it was too late to avoid collision. He testified that he believed from his observation of the Mathers vehicle that he had plenty of time to make his turn, even if Mathers did not stop. He denied trying to beat the Mathers car through the intersection. He testified he did not realize that Mathers was not going to stop. His testimony is susceptible of several interpretations. However, it is sufficient to support a theory of reliance upon the presence of the stop sign and normal lawabiding behavior upon the part of the disfavored driver. Appellant was therefore entitled to his requested instruction on the right to assume that those using the highway will obey the rules of the road.

Failure to give court's instruction No. 9 and appellant's requested instruction deprived appellant of a statement to the jury of his theory of the case and was prejudicial error.

Appellant Poston's third assignment of error goes to the giving of an instruction setting forth actions which, if found by the jury, would constitute contributory negligence. ⁴ It will be observed that the instruction as given omits mention of a reasonable reaction time.

A favored driver is entitled to a reasonable reaction time after it becomes apparent in the exercise of due care that the disfavored driver will not yield the right-of-way. Until he has been allowed that reaction time, he is not chargeable with contributory negligence flowing from omissions or acts regarding his failure to observe or respond to the conduct of the disfavored driver. Petersavage v. Bock, 72 Wash.2d 1, 431 P.2d 603 (1967); Zahn v. Arbelo, 72 Wash.2d 636, 434 P.2d 570 (1967); Archibald v. Gossard, 65 Wash.2d 486, 397 P.2d 851 (1965).

The instruction as given purports to list the facts from which contributory negligence could be found. It is a formula instruction, and a fatally defective one, for it omits the requirement of a reasonable reaction time. Such an instruction is, in and of itself, reversible error.

It is clear that appellants are entitled to a new trial on the basis of their second and third assignments of error, and that the trial court erred in denying their motion for a new trial. ⁵

As indicated, the jury returned a verdict of $500 for injuries sustained by Peggy Poston, who was 15 years of age at the time of the accident and 17 at the time of the trial. Judgment was entered for that amount in favor of Henry F. Poston, Sr., as her guardian ad litem.

The verdicts make the mental processes of the jury very clear.

They started with the basis that Mathers was negligent, as they had been instructed to do; denied recovery to Mr. and Mrs. Poston because of Mr. Poston's contributory negligence; and granted recovery to Peggy Poston (through her guardian ad litem) since the contributory negligence of her father could not be attributed to her. Vioen v. Cluff, 69 Wash.2d 306, 418 P.2d 430 (1966); Adamson v. Traylor, 60 Wash.2d 332, 373 P.2d 961 (1962); Hilstad v. City of Seattle, 149 Wash. 483, 271 P. 264 (1928). The jury understood and followed the instructions of the trial court in awarding damages to the...