Presleigh v. Lewis, 912--III
| Decision Date | 17 April 1975 |
| Docket Number | No. 912--III,912--III |
| Citation | 13 Wn.App. 212,534 P.2d 606 |
| Parties | James B. PRESLEIGH and Barbara J. Presieigh, Respondents, v. Jack L. LEWIS and Jane Doe Lewis, husband and wife, Appellants. |
| Court | Washington Court of Appeals |
Gail K. Holden, Turner, Stoeve, Gagliardi & Kennedy, Spokane, for appellants.
F. Lawrence Taylor, Jr., Gordon & Ripple, Spokane, for respondents.
Defendants appeal from a judgment n.o.v. or in the alternative a new trial.
On January 20, 1973, a physician gave the defendant, Jack Lewis, an anti- nauseant injection in the arm for treatment of a flu condition. Defendant left the physician's office, got in his car and while driving home he blacked out. His car left North Crestline Street in Spokane and crashed into a house owned by the plaintiffs, James E. and Barbara J. Presleigh, causing substantial damage.
The evidence shows that on January 19, 1973, the defendant, while at work, began feeling ill and thought he was suffering from the flu. His physician prescribed medication and advised defendant to come to his office the next morning. At that time, he received an injection in the arm. He testified that his physician warned him the shot could affect his driving:
Anyway, he gave me the shot and I put my shirt on and started to put my coat back on, and he said 'Where are you going', and I said 'I am going home, I am sick,' and he said 'The reason I asked is because I don't want you to drive downtown or out on the freeway or someplace where you are going to be in traffic because this shot could have a tendency to make you drowsy, some people it does, some people it doesn't, and I said, 'Is it okay if I drive home,' and he said 'Oh yah, fine, but watch for drowsiness, if you feel like you are getting sleepy, pull over, roll the window down, make sure you are okay, and go on home,' and so I said 'Okay,' and didn't think much more about it then.
On his way home, defendant went by his sister's house for about 5 minutes and then proceeded towards home. He stopped at a red light and when the light turned green he went through the intersection and 'that's the last thing I remember.' He was awakened in his car by someone knocking on the window and when he opened his eyes he saw a pile of debris on the hood of his car.
The trial court, in granting judgment n.o.v., relied upon Kaiser v. Suburban Transportation System, 65 Wash.2d 461, 398 P.2d 14, 401 P.2d 350 (1965). While the facts are different here, the pronouncements in Kaiser direct the decision here. In Kaiser, a driver of a bus lost consciousness and struck a telephone pole, causing injury to a passenger. The driver had been taking a drug prescribed by his doctor for treatment of a nasal condition. He claimed his doctor gave him no warning as to possible side effects of the drug. A few miles before the accident, he felt groggy and drowsy and blacked out or went to sleep shortly before the bus left the road. The passenger sued the driver and the bus company who, in turn, cross-claimed against the doctor and his employer. The doctor and his employer were dismissed because the evidence showed no standard of care to which the doctor was bound and even if negligent in not warning, the driver's negligence in proceeding after he became drowsy was an intervening cause. A verdict was directed against the bus driver and the bus company. All parties appealed. On appeal, the court said, at page 469, 398 P.2d at page 19:
We are convinced from this record . . . that the plaintiff is entitled to judgment as a matter of law on the issue of liability against either the bus company and the driver, or Group Health and the doctor, or both, depending upon certain factual determinations by the jury which we hereinafter specify in our directions for remand.
The court then held:
The judgment of the trial court entered upon the jury verdict is reversed and remanded for a new trial on all issues subject to the following:
The jury should be directed that . . . (c) in the Event the jury finds that a warning of the side effects of the drug was given to the bus driver, then the verdict shall be against the bus company and the driver only.
(Italics ours.)
Thus, the issue presented is whether the defendant, having been warned that he might become drowsy, is liable as a matter of law when he 'blacks-out' or goes to sleep while driving without first becoming drowsy.
It is obvious that an automobile may become a dangerous instrumentality. One who undertakes to drive his automobile has a duty to drive it in a reasonable manner so as to not injure another in his person or property. The defendant breached that duty as a matter of law when he undertook to drive his automobile knowing his ability to drive in a reasonable manner might be affected. The fact that he did not know the precise way in which his driving might be affected and he did not in fact become drowsy before he blacked out or went to sleep does not relieve him from a breach of this duty. Thus, defendant was negligent as a matter of law for driving after he was warned that his driving could be affected by the injection and must be held liable for the damages resulting therefrom. Kaiser v. Suburban Transportation Sytem, Supra; see W. Prosser, Law of Torts § 29 (3d ed. 1964); 28 A.L.R.2d 12, 40 et seq. (1953); Theisen v. Wilwaukee Automobile Mut. Ins. Co., 18 Wis.2d 91, 118 N.W.2d 140, 143--144 (1962); Wisconsin Natural Gas Co. v. Employers Mutual Liability Ins. Co.,263 Wis. 633, 58 N.W.2d 424, 426 (1953).
We are mindful of the rule that in granting a judgment n.o.v. all of the evidence must be considered in a light most favorable to the non-moving party. It is undisputed that defendant was warned that his driving might be affected. The fact that he and his physician believed it was safe for him to drive home does not relieve him from his duty not to drive when he knew his driving might be impaired by the injected drug. Defendant gambled and lost.
Might laugh again to see a jury chaw
The prickles of unpalatable law.
Dryden, The Medal. The above is apropos because of the delicate problem posed by the law in this case. The plaintiffs' home was damaged through no fault of theirs and the jury in effect stated that the defendant was not liable for the damage because he was not negligent.
Initially, the jury's verdict was that of dismissing the complaint of the plaintiff. The law protects that verdict by requiring that the court, in deciding whether to grant a judgment notwithstanding the verdict, view the evidence in a light most favorable to the nonmoving party and all material evidence favorable to that party must be taken as true. 1 The court must be able to say as a matter of law that neither the evidence nor reasonable inferences from the evidence are sufficient to sustain the verdict. 2 No element of discretion is vested in the trial court in ruling upon the motion. If there are justifiable inferences from the evidence upon which reasonable minds might reach conclusions that would sustain a verdict, then the question is for the jury, not for the court. The motion may be granted only if it can properly be said as a matter of law that there is no evidence or reasonable inference therefrom to sustain a verdict for the nonmoving party. 3 Therefore, if substantial evidence supports the verdict of the jury, the verdict must stand. 4
The majority opinion holds that Kaiser v. Suburban Transportation System, 65 Wash.2d 461, 398 P.2d 14, 401 P.2d 350 (1965) dictates their conclusion that the defendant was negligent as a matter of law. I respectfully dissent.
The facts are distinguishable. In Kaiser the defendant busdriver took some medication and later became drowsy, eventually losing consciousness. The doctor had failed to warn him of the possible adverse side effects. In the instant case the defendant was given some medication by his physician. Dr. Burns warned that he might become drowsy while driving, and if he did so, he was to pull over and rest until he felt better. He was not warned that he could pass out without first becoming drowsy. On his way home the defendant suddenly lost...
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... ... See id. 41 In Presleigh v. Lewis , a driver blacked out and caused an accident after a doctor gave him an anti-nausea ... ...
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State v. Richeson
...the medication would affect his ability to drive. See Mikula v. Balogh, 9 Ohio App.2d 250, 224 N.E.2d 148 (1965); Presleigh v. Lewis, 13 Wash.App. 212, 534 P.2d 606 (1975); Kaiser v. Suburban Transportation System, 65 Wash.2d 461, 398 P.2d 14, amended on other grounds, 65 Wash.2d 461, 401 P......
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Crawford v. Miller
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