Raybell v. State

Decision Date25 April 1972
Docket NumberNo. 498--II,498--II
Citation496 P.2d 559,6 Wn.App. 795
PartiesGlen E. RAYBELL, Administrator of the Estate of William A. Raybell, Sr., Deceased, Respondent, v. The STATE of Washington, Appellant.
CourtWashington Court of Appeals

Slade Gorton, Atty. Gen., W. George Bassett, Asst. Atty. Gen., Olympia, for appellant.

Owen P. Hughes of Bonneville, Hughes & Viert, Tacoma, for respondent.


This is a wrongful death action brought by the personal representative of William A. Raybell, Sr., deceased, against the defendant, State of Washington. Raybell was killed on August 1, 1969, when the automobile he was driving left State Highway 165 and plunged to the bottom of the Carbon River Canyon in Pierce County. Plaintiff successfully contended to a jury that the state was negligent in maintaining an inherently dangerous highway with inadequate guardrails at the point where decedent's automobile left the road.

Defendant appeals the $80,000 judgment, contending the trial court erred in submitting the case to the jury in two main respects: (1) there was a failure of proof of primary negligence which proximately caused decedent's death; and (2) contributory negligence was established as a matter of law.

Since this was an unwitnessed accident, we must first determine whether the circumstantial evidence was sufficient to establish that decedent's death was proximately caused by the breach of a duty owed to him by the defendant, State of Washington. Then we must determine whether the evidence established decedent's contributory negligence as a matter of law.

In setting forth the operative facts, we are considering the evidence in a light favorable to the jury's determination and allowing plaintiff the benefit of all reasonable inferences from the relevant circumstances. Papac v. Mayr Bros. Logging Co., 1 Wash.App. 33, 459 P.2d 57 (1969).

The precise reason by Raybell's vehicle left the highway was unknown. However, through protographic evidence, by the testimony of an accident reconstruction expert, and by the physical evidence presented, the following plausible explanation of how the accident occurred was presented to the jury by plaintiff's witnesses.

The scene of the accident was approximately 2500 feet south of the Carbon River Bridge, some 4 miles south of Carbonado, on State Highway 165. This highway is a narrow, two-lane asphalt road, with 9-foot driving lanes running generally north and south. At the accident location, the highway is bordered on the east by a sheer 400-to 450-foot drop into the Carbon River Canyon, and on the west by a rocky cliff that rises sharply from the westerly edge of the roadway. The road curves to the west around the cliff and then begins a slight turn back to the east at the accident site. The grade is slightly downhill for an automobile traveling northerly--the direction of Raybell's travel at the time of the accident. The posted speed limit is 35 miles per hour.

Decedent's vehicle left the roadway at a point where the roadway perceptibly narrows and at a point where frequent rock slides tumble off the cliff and across the highway.

Prior to February 1, 1967, the state had protected the easterly edge of the roadway with several hundred feet of guardrailing, consisting of concrete posts imbedded in the shoulder at 12-foot intervals, connected by two strands of steel cable. On February 1, 1967, a slide took out the major part of the easterly shoulder of the highway and with it about 180 feet of the guardrail. Instead of attempting to repair the shoulder and install a more permanent protective railing, the state erected a temporary guardrail, commencing some 6 feet north of the last post of the permanent guardrail. This temporary guardrail consisted of a single 12-inch steel band attached to wooden posts which were not imbedded in the ground, were not attached to the end of the permanent railing, and were originally supported by rocks and sandbags.

Of necessity, because of the loss of road shoulder, the temporary barricade was appreciably closer to the traveled portion of the highway than the remaining portion of the permanent guardrail to the south. From the photographs, it appears that the south end of the temporary barricade somewhat obstructs and narrows the width of the roadway. Originally, the temporary guardrail was equipped with three flashing lights and delineators to warn motorists of the danger. However, either because of vandalism or ordinary deterioration from frequent rock slides, the warning lights were not present at the time of this accident, nor were there any sandbags supporting the guardrail. It is reasonable to infer that at the time of the accident the railing itself would not have deflected even a slow-moving vehicle. Since there was a gap of some 6 feet between the temporary and the permanent railing, there was no protection at all at the precise point where the danger was the greatest, because of the narrowed roadway. It was at this point decedent's car left the roadway.

In 1969 decedent was 57 years old, married, with three minor children still living at home. The evidence demonstrated that on the day of the accident he had planned to drive south of Wilkeson on State Highway 165 in his 1961 Mercury Comet stationwagon, to seek employment with a logging company. He was in good health and his vehicle was in good condition, with no known defects. He was generally unfamiliar with the highway in that area. It is reasonable to infer that he had passed the scene of the accident some time during the morning of August 1st, proceeding on that occasion in the southbound driving lane, near the rocky cliff abutting the westerly edge of the roadway.

The accident was not discovered until late in the afternoon, when an employee of the state noticed the temporary guardrail tipped onto its face on the east edge of the driving surface. Other physical evidence was presented, by which the jury could reasonably infer that as decedent proceeded northerly the left front fender of his car came into contact with the southerly edge of the temporary guardrail and left the roadway at an angle estimated at 20 to 25 , proceeding through the unguarded area between the temporary and permanent guardrail and into the canyon.

To show the lack of effective warning of the deceptive roadway conditions, plaintiff offered evidence that view of the accident area was obscured because of the curve in the roadway a short distance to the south. The only warnings to northbound vehicles were situated some 1500 feet to the south. One sign said, 'Slide area 2 miles' and another said, 'Rocks.' There was no warning of the narrowing of the roadway or of the absence of shoulder or permanent guardrail.

To demonstrate that the absence of a properly installed and maintained guardrail was the cause of decedent's death, plaintiff introduced evidence through a qualified highway engineer that had a properly designed and installed guardrail been in place, a vehicle leaving the traveled portion of the roadway at the angle of travel of decedent's vehicle would have been deflected back on the highway at speeds as high as 48 miles per hour. The feasibility of such a guardrail was shown by the fact that the state later installed one in this location and had, prior to the accident, placed such railings in other similarly precipitous places.

This expert also testified that the condition and position of the temporary guardrail constituted an extremely hazardous condition for travelers on the highway. This testimony was buttressed by certain exhibits concerning highway design which were admitted over defendant's objection. 1 One of these exhibits was entitled 'Highway Design and Operational Practices Related to Highway Safety,' dated February, 1967. This exhibit was approved by the Executive Committee of the American Association of State Highway Officials, one of whom was C. G. Prahl, former Washington State Highway Director. The portion pertaining to guardrails provided:

The objective in placing guardrail is to lessen the hazard to traffic and not to protect any part of the roadway structure. Guardrail should only be used where the result of striking the object or leaving the roadway would be more severe than the consequences of striking the rail. . . . To afford maximum protection and to develop the full strength of the rail in tension all guardrails on the approaches to structures must be attached securely to the structure and provide a relatively smooth configuration on the traffic side. . . .

The approach ends of guardrail are one of the more formidable roadside obstacles with which traffic must contend. The many spectacular accidents involving collisions with the guardrail ends document this serious hazard . . . It is strongly recommended that all guardrail approach ends be flared away from the roadway and anchored to the ground, or otherwise blended into the approach environment.

Also admitted over defendant's objection were four editions of a publication entitled, 'A Policy on Geometric Design of Rural Highways,'--also published by the American Association of State Highway Officials--which, like the quoted exhibit, concerned the proper design, placement and purpose of guardrails. These exhibits demonstrated that the above-quoted policies had been well recognized by highway experts for many years.

The testimony established that the criteria set forth in these various publications pertaining to guardrails were known by and accepted by this state as reasonable highway safety standards.

The thrust of the defendant's case sought to establish that decedent's death was caused by his own negligence. To support this theory, certain of the state's witnesses testified that there were fresh marks on the rocky cliff and tire marks below the marks on the narrow shoulder on the west side of the highway. These markings were some 40 feet south of...

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26 cases
  • Martini ex rel. Dussault v. State
    • United States
    • Washington Court of Appeals
    • April 14, 2004
    ...the force of law are admissible where relevant, trustworthy and necessary to prove the matter contained therein"); Raybell v. State, 6 Wash.App. 795, 805, 496 P.2d 559 (highway safety manuals properly admitted with cautionary instruction), review denied, 81 Wash.2d 1003 (1972). 21. RP (May ......
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    ...(holding that "[a] county has a duty to maintain its highways in a reasonably safe condition for its users"), and Raybell v. State, 6 Wash.App. 795, 802, 496 P.2d 559 (1972). Furthermore, taken as a whole, instruction 13 did not allow Keller to argue his theory of the case—that the City's n......
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    ...773, 264 P.2d 265, 42 A.L.R.2d 800 (1953); Wojcik v. Chrysler Corp., 50 Wash.App. 849, 857-58, 751 P.2d 854 (1988); Raybell v. State, 6 Wash.App. 795, 496 P.2d 559 (1972). Proximate Cause. Once primary duty is established as a matter of law, the remaining elements—breach, proximate cause, a......
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1 books & journal articles
  • Washington State's 45-year Experiment in Governmental Liability
    • United States
    • Seattle University School of Law Seattle University Law Review No. 29-01, September 2005
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