Roberts v. Goerig, 37782

• Decision Date: 21 April 1966
• Docket Number: No. 37782,37782
• Court: Washington Supreme Court
• Parties: William L. ROBERTS and Jesse Hoadley, Appellants, v. Albert C. GOERIG, and George Goerig and Lois Goerig, his wife, Respondents.

Page 442

68 Wn.2d 442

413 P.2d 626

William L. ROBERTS and Jesse Hoadley, Appellants, v. Albert C. GOERIG, and George Goerig and Lois Goerig, his

wife, Respondents.

No. 37782.

Supreme Court of Washington, Department 2.

April 21, 1966.

Rehearing Denied June 22, 1966.

Vaughn E. Evans, Seattle, for appellants.

Martin, Shorts & Bever, Seattle, for respondents.

DONWORTH, Judge.

This is an appeal by two plaintiffs from the judgment entered by the court on a jury verdict in a bodily injury suit arising from a collision of two automobiles. One car was driven by plaintiff William L. Roberts, in which plaintiff Jesse Hoadley was a passenger. The jury awarded $123 damages to Hoadley and none to Roberts. The other car was driven by defendant Albert C. Goerig. Albert Goerig's parents were joined as defendants because the car was owned by them. Since any liability of the three defendants in this case can only result from defendant Albert Goerig's actions, he will hereafter be referred to as if he were the sole defendant.

The trial court instructed the jury that defendant Goerig was negligent as a matter of law, and gave instructions pertaining to the contributory negligence, if any, of plaintiff Roberts. The jury was directed to find defendant Goerig liable to plaintiff Hoadley for any damages they found that he sustained as a result of the accident. Hereafter, in this opinion, the plaintiffs will be referred to as appellants and the defendant Albert Goerig as respondent.

The accident occurred in August 10, 1962, at about 4:30 p.m. at the intersection of First Avenue South and South 156th Street (south of Seattle city limits, near Burien). The day was clear and sunny and the roadway dry. There is a stop sign which requires all traffic on South 156th Street to stop before entering the intersection with First Avenue South, which is an arterial street. Traffic thereon is not required to stop for the intersection of South 156th Street.

Respondent Goerig was driving his parents' car south on First Avenue South. He had entered First Avenue South a few blocks north, at South 150th Street, at which point First Avenue South is a 4-lane, blacktop thoroughfare (2 lanes in each direction). As he proceeded south thereon, there was a sign near the intersection of South 153rd Street, which stated 'pavement narrows.' Just before entering the intersection of South 154th Street, there was another sign which read 'No Passing--2-lane pavement ahead.' At this point, there are lines painted on the pavement to indicate that the two southbound lanes of traffic should merge or funnel into one lane. Just after reaching the intersection with South 154th Street, there was a third sign which read 'No Passing--stay in line.' At this point the pavement narrows gradually and becomes two lanes of concrete before reaching South 155th Street (one lane for traffic going in each direction, I.e. north and south). There is a ditch at the side of the west shoulder of First Avenue South between South 154th Street and South 155th Street.

South of the intersection of South 155th Street and First Avenue South, the pavement appears to again widen, so that it was possible and was a frequent occurrence for southbound cars to again form two lanes (one on the concrete and the other on blacktop). There are no warning signs between South 155th and South 156th Streets to indicate to southbound drivers that the southbound roadway has not been again widened to two lanes as it had been north of South 154th Street. The evidence relating to the character of the roadway between South 155th and South 156th Streets will be discussed in some detail later in this opinion. A photograph of the scene of the intersection taken from the south side, looking north, is marked by witness Gerald Anderson to show the place of the collision.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The accident occurred as follows: Respondent Goerig testified that he was proceeding south on First Avenue South and wished to turn right onto South 156th Street at that intersection. The traffic was heavy, and a line of cars in the inside lane extended south well beyond South 156th Street, and probably to South 160th Street (which is a main intersection with traffic control lights). As he approached the intersection, several cars passed respondent Goerig on the right, using the blacktopped lane which appeared to him to be part of the paved roadway.

Goerig stated that he turned out into this so-called right lane and proceeded to pass about 10 cars on the right as he approached South 156th Street, at between 10 and 20 m.p.h. He slowed down to between 5 and 10 m.p.h. as he approached the point of his anticipated right turn.

In the interim, appellant Roberts with his passenger, appellant Hoadley, had approached First Avenue South on South 156th Street from the east side. Appellant Roberts, who was driving, intended to cross First Avenue South and continue west on South 156th Street. He stopped and waited for the long, continuous line of traffic on First Avenue South to give him an opportunity to cross. After about a two-minute wait, a southbound driver stopped his car just north of the intersection with South 156th Street, and motioned Roberts to cross in front of him. Roberts checked the traffic condition to the south, and, there being no cars approaching from that direction, proceeded across in front of the driver who had stopped for him. Roberts' car passed within two feet of the stopped car, and proceeded west through the intersection at about 5 m.p.h.

Neither Goerig nor Roberts saw the car driven by the other until Roberts had proceeded a few feet beyond the car which had stopped. At this point, neither could have avoided a collision. Roberts tried to speed up to clear the intersection, whereas Goerig skidded in an attempt to stop short of impact. Neither driver succeeded in his maneuver, and Goerig's car crashed into the right rear quarter of Roberts' car. The rear quarter panel and hubcap of Roberts' car were damaged.

A very important witness with regard to the question of the liability of respondent Goerig was Mr. Gerald Anderson, who had been the investigating state patrol officer at the scene of the accident. At the time of trial, Mr. Anderson was a King County road district employee. He testified that First Avenue South narrowed from a 4-lane street (2 lanes in each direction) to a 2-lane street (1 lane in each direction) between South 153rd Street and South 155th Street, and that the three signs referred to above indicate this narrowing to southbound drivers.

He also testified that the private business owners whose property abutted the west side of First Avenue South between South 155th and South 156th Streets had paved with blacktop the area that appears to be the second southbound lane (south of South 155th Street) at the time when the parking lot area in front of their buildings was paved. The parking area was separated from the street by 'C-curbing.' The state highway department gave them permission so to do, specified the conditions under which such paving could be done, and approved the work. The work permits and the plans in connection with this paving were introduced in evidence and are in the record. The only apparent difference between the inner lane (which is considered by the state and county to be paved roadway) and the 'outer lane' (which is considered by the state and county to be a paved shoulder) is that the inner lane is concrete, and the 'outer lane' is blacktop. There are no signs to indicate to a southbound driver that only the inner lane is a public highway south of South 155th Street. Both lanes are on the public highway right of way.

Mr. Anderson was asked by the defendant's counsel if he had seen cars use the blacktopped 'outer lane' for passing cars and making right turns in the same manner as Goerig had used it. Mr. Anderson stated that he had seen many cars on various occasions so use this lane. On redirect examination, plaintiff's counsel was allowed by the court to ask Mr. Anderson whether he had been given instructions to issue traffic violation tickets to persons driving in the blacktopped 'outer lane' as respondent Goerig had done. Mr. Anderson answered that he had been told by his superiors to issue traffic violation citations to such persons. It had developed, on voir dire examination of Mr. Anderson (out of the presence of the jury prior to his giving this testimony), that respondent Goerig had received a traffic violation citation for negligent driving based on the charges that Goerig was (1) driving on the shoulder, (2) improperly passing, and (3) passing on the right.

The trial court was well aware of King County unform instruction No. 6, which is an expression of the rule that the conviction of a traffic violation is not to be considered proof of any fact in the case. However, the trial court did indicate that he was weighing the nature of Mr. Anderson's voir dire and proffered testimony to see if it would be relevant to the issue of whether or not the blacktopped outer lane was a part of the roadway or was the shoulder of the road. At the time Mr. Anderson testified, the trial court indicated that it believed this was a jury question.

The second important witness with regard to the liability of respondent Goerig was Mr. Willard E. Baylis, Jr., who was assistant locating engineer district No. 1, state highway department. He testified that First Avenue South at its intersection with South 156th Street was a 2-lane roadway (one lane each direction) and that the blacktopped outer lane differed from the blacktopped surface of both lanes of First Avenue South between South 152nd Street and South 154th Street only because (1) it did not have sufficient foundation to support the heavy trucks and type of traffic expected to use this state highway, and (2) that it was newer.

Mr. Baylis was asked by the trial court why the...