Radford v. Morris
| Decision Date | 20 July 1970 |
| Docket Number | No. 4837,4837 |
| Citation | 472 P.2d 500,52 Haw. 180 |
| Parties | , 52 Haw. 225 Genevieve RADFORDPlaintiff-Appellant, Cross-Appellee, v. James H. MORRIS, Defendant and Third-Party Plaintiff-Appellee, Cross-Appellant, v. Wilfred A. RADFORD, Third-Party Defendant-Appellee, Cross-Appellee. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. When applying Section 15-11.3(1) of the Honolulu City and County Traffic Code, each section of a through divided highway is to be considered a separate street.
2. Section 15-9.10 of the Honolulu City and County Traffic Code requires both cross traffic and motorists making left hand turns off a divided highway to yield to oncoming traffic on the second section.
3. Generally statutes and ordinances should not be read as charges to the jury since the legalistic form is not easily understood by laymen.
4. It is error for a trial judge to refuse to give requested instructions which correctly state the law on issues presented unless the points are adequately covered by the instructions given.
5. Concurring negligence of a third party is not a defense in a negligence action unless such concurring negligence is the sole proximate cause of plaintiff's injury.
Harriet Bouslog, Honolulu (Bouslog & Symonds, Honolulu, of counsel), for plaintiff-appellant.
Wallace S. Fujiyama, Honolulu (Bert T. Kobayashi, Jr., Honolulu, with him on the brief; Chuck & Fujiyama, Honolulu, of counsel), for defendant-appellee.
Before RICHARDSON, C. J., MARUMOTO, ABE and LEVINSON, JJ., and WONG, Circuit Judge, in place of KOBAYASHI, J., disqualified.
On May 9, 1965, the plaintiff, Genevieve Radford, suffered injuries in an automobile collision involving a car driven by her husband, Wilfred A. Radford, in whose car she was a passenger, and another driven by the defendant, James A. Morris.
The accident occurred at the intersection of Ala Moana Boulevard 1 and Hobron Lane 2 in Honolulu. The Ala Moana Boulevard, a through street, is divided into two separate highways consisting of three traffic lanes each. At the time of the collision there were no traffic lights 3 at the intersection. At both the makai and mauka intersections, erected signs directed traffic on Hobron Lane to stop before entering Ala Moana Boulevard.
The point of contact as agreed by both drivers was deemed 'to be within the 2nd lane of the town-bound lanes of Ala Moana at a point 22 feet makai of the mauka prolongation of Hobron Lane.'
Immediately prior to the accident, the defendant, driving on Hobron Lane, had stopped at the stop sign at the makai intersection and entered Ala Moana Boulevard, intending to go across six lanes of traffic plus the medial strip on to Hobron Lane on the mauka of Ala Moana Boulevard. The collision occurred at a point above stated in the middle lane of the town-bound traffic lanes.
After the plaintiff instituted this action to recover damages from the defendant, the defendant filed a third-party complaint naming Wilfred A. Radford, the plaintiff's husband, as third party defendant. On the motion of the plaintiff, the third party complaint was dismissed.
The jury returned a verdict for the defendant and the trial court entered judgment accordingly. The plaintiff appealed on numerous points but we believe only two merit consideration.
Whether the trial judge correctly charged the jury as to the party having the right-of-way.
On this question the trial judge charged the jury as follows:
'Section 15.23(10) of Article II of the Traffic Code of the City and County of Honolulu defines 'intersection' as follows:
The area embraced within the prolongation or connection of the lateral curb lines, or, if none, then the lateral boundary lines of the roadways of two highways which join at, or approximately at, right angles, or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict. 4
'Section 15-11.1(1) of Article XI of the Traffic Code of the City and County of Honolulu provides that:
The driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway. 5
'Section 15-11.3(1) of Article XI of the Traffic Code of the City and County of Honolulu provides that:
The driver of a vehicle shall stop as required by this Traffic Code at the entrance to a through street and shall yield the right-of-way to other vehicles which have entered the intersection from said through street or which are approaching so closely on said through street as to constitute an immediate hazard, but said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on said through street shall yield the right-of-way to vehicle so proceeding into or across the through street.' 6
The judge refused to give plaintiff's requested Instruction No. 37 which reads:
'You are instructed that Section 15-9.10 of the Traffic Code of the City and County of Honolulu provides:
Whenever any highway has been divided into two or more separate roadways by medial strips, every vehicle shall be driven only upon the right-hand roadway and no vehicle shall be driven over, across, or within any such medial strips except through an opening in such strips or at a crossover or intersection; provided, however, that a driver who enters such opening, crossover or intersection shall yield the right-of-way to approaching vehicles before emerging upon the adjacent roadway of such divided highway, unless otherwise instructed.'
As charged by the trial judge, the defendant having stopped and yielded to the Koko Head-bound traffic, at the makai intersection, could without regard for any townbound traffic proceed across the mauka or town-bound traffic lanes of Ala Moana Boulevard. This was the very point of law that the defendant argued to the jury at the trial. Thus, he would not be required to stop at the opening at the medial strip or yield the right-of-way to the town-bound traffic. 7
We believe § 15-11.3(1) was not intended to place this unreasonable burden on drivers traveling on a divided through highway. The duty should be upon a driver going across divided through highways to yield to traffic on the divided highways, first at the stop sign before entering the intersection to traffic on the divided highway going in one direction; then at the opening of the medial strip to traffic on the other portion of the divided highway going in the opposite direction. In other words, each section of the divided highway is to be considered a separate street. Thus, a street cutting across a divided highway would form two intersections. Under § 15-11.3 (1) the defendant should have been required to first stop at the stop sign at the makai intersection and yield the right-of-way to Koko Head-bound traffic on the Ala Moana Boulevard. Then he should have been required to yield the right-of-way before crossing the medial strip to town-bound traffic on the Ala Moana Boulevard. Courts in other jurisdictions have reached similar results in interpreting like statutes and ordinances. See Geyer v. Milwaukee El. Ry. & Light Co., 230 Wis. 347, 284 N.W. 1 (1939); Bartlett v. Hammond, 76 Colo. 171, 230 P. 109 (1924); Heintz v. Schenck, 176 Wis. 562, 186 N.W. 610 (1922); Pennington v. Carper, 309 S.W.2d 596 (Mo.Sup. Ct.1958).
The plaintiff in support of Instruction No 37 contends that § 15-9.10 was applicable to the defendant when he entered the intersection because Ala Moana Boulevard was a through street and therefore the intersection should be considered part of Ala Moana Boulevard; and that the defendant while driving in the intersection was operating his automobile on a divided highway. On the other hand, the defendant argues that the section is only applicable to a motorist driving on a divided highway and making a left turn at the intersection but was not applicable to the defendant in this case and, therefore, the trial judge did not err in refusing to read the section as an instruction requested by the plaintiff.
We disagree with the defendant and we hold that the section in question was applicable to the defendant. The section provides that on a divided highway a motorist shall drive on the right-hand roadway and that no vehicle shall be driven across a medial strip, except through an opening therein, or at a crossover or intersection. The 'provided,...
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