Ryan v. Westgard, 2737--I

• Decision Date: 06 January 1975
• Docket Number: No. 2737--I,2737--I
• Parties: Ronald P. RYAN, Respondent, v. Michael K. WESTGARD and Jane Doe Westgard, his wife, Appellants.
• Court: Washington Court of Appeals

Page 500

12 Wn.App. 500

530 P.2d 687

Ronald P. RYAN, Respondent, v. Michael K. WESTGARD and Jane Doe Westgard, his wife, Appellants.

No. 2737--I.

Court of Appeals of Washington, Division 1.

Jan. 6, 1975.

Rutherford, Kargianis & Austin, Samuel C. Rutherford, Seattle, for appellants.

Levinson, Friedman, Vhugen, Duggan & Bland, Ronald J. Bland, Seattle, for respondent.

CALLOW, Judge.

Michael K. Westgard, defendant, appeals a jury verdict of $145,000 awarded in favor of Ronald P. Ryan, plaintiff, for injuries sustained in an automobile accident.

On February 22, 1972, at approximately 10:25 p.m., the plaintiff was driving a 1968 Volkswagen north in the center lane of Interstate 5. His speed was approximately 60 mph. He had been following the vehicle immediately in front of him for some time at a distance of 100 feet or better when he saw it suddenly change lanes. Immediately apprehensive, the plaintiff also attempted to change lanes but could not because of traffic. In the next instant, he collided with the rear of the defendant's pickup truck which was also traveling north in the center lane.

The plaintiff testified at the trial that he glimpsed the defendant's truck prior to the accident but was uncertain whether he had seen lights on it. The plaintiff also stated that he did not apply his brakes until just before the impact. He testified that it was his impression that he could have stopped if the vehicle immediately in front of him, which had swerved into another lane, instead had attempted to stop. There was expert testimony that an automobile traveling at 60 mph would take approximately 300 feet to stop but that the recommended following distance for cars traveling at 60 mph was approximately 120 feet.

The defendant testified that the collision occurred as he lost speed when he ran out of gas in his auxiliary tank and was switching to his main tank. ¹ There was a conflict in the testimony over the speed of the defendant at the time of the accident. The defendant in his initial statement had said that he had slowed to between 5 and 10 mph. In his trial testimony, he was unsure of his speed but estimated he was traveling at least 30 mph. There was also evidence that the defendant was under the influence of intoxicating liquor at the time of the accident. Other evidence showed that as a result of the accident, the defendant had pleaded guilty to hit and run and negligent driving. Following the verdict, the defendant's motions for judgment n.o.v. and for a new trial were denied.

The issues raised on appeal concern (1) claimed jury misconduct; (2) when is a following driver contributorily negligent; (3) whether the instruction on the duty of a driver to signal on stopping was proper; (4) the refusal of the defendant's proposed instruction on speed and using the impact and violence of a collision to determine speed; (5) the admissibility of the defendant's pleas of guilty to negligent driving and hit and run arising out of the accident and whether the court should have allowed these guilty pleas to have been argued to the jury; and (6) the claimed excessiveness of the verdict.

I THE CONDUCT OF THE JURY

The defendant moved for a new trial alleging misconduct on the part of certain jurors and submitted affidavits in support of the motion. These affidavits reflected that various jurors had spoken of their own experiences with truck gas tanks, their feelings about the defendant pleading guilty to the traffic offense and the ability of the defendant to respond to a large verdict. The trial judge denied the motion for a new trial stating that the affidavits of the jurors were insufficient to set aside the verdict.

In considering affidavits concerning jury misconduct filed following a verdict, those portions of the affidavits should be discarded which question or impute error to the verdict itself and only those facts should be considered which relate to juror misconduct which in all likelihood influenced the verdict. A juror's statements about the effect the remarks of other jurors had upon his thought processes in arriving at his verdict may not be considered to set aside that verdict, but statements of fact about the misconduct of other jurors should be examined to determine if the misconduct was an element relied upon by the jury in its considerations. It is the function of the court to determine whether the remarks made by a juror probably had a prejudicial effect upon the minds of the other jurors and their verdict. Verdicts should be upheld and the free, frank and secret deliberation upon which they are based held sacrosanct unless (1) the affidavits of the jurors allege facts showing misconduct and (2) those facts support a determination that the misconduct affected the verdict. Halverson v. Anderson, 82 Wash.2d 746, 513 P.2d 827 (1973); State v. Gobin, 73 Wash.2d 206, 437 P.2d 389 (1968); Gardner v. Malone, 60 Wash.2d 836, 376 P.2d 651 (1962).

In the Halverson case, the court held that a statement of a juror concerning the possible prospective earnings of an injured minor if he could become an airline pilot or civil surveyor was misconduct. Under the Halverson rule, it is misconduct for a juror to place before his fellow jurors evidence which is not subject to objection, cross-examination, explanation or rebuttal. Thus, when a juror introduces into the discussion in the jury room his own unsworn testimony about matters that bear directly upon the material facts of the case at issue, as opposed to discussing an unrelated experience which might enlighten the discussion, such an act is misconduct.

The analysis of affidavits concerning jury misconduct and the resolution of the effect of juror discussion of matters outside the record is the province of the trial judge. As stated in Halverson on page 752 of 82 Wash.2d, on page 830 of 513 P.2d:

The effect which this evidence may have had upon the jury was a question which was properly determined in the sound discretion of the trial court which had observed all the witnesses and the trial proceedings and had in mind the evidence which had been presented. If the trial court had any doubt that the misconduct affected the verdict, it was obliged to resolve that doubt in favor of granting a new trial.

Nearly all the statements presented in the affidavits before the trial court are about matters which involved the thought processes of the jurors. These statements are insufficient to impeach their verdict. The situation presented in this case involved misconduct by the juror who discussed his own experience with truck gas tanks. This statement was made following a trial in which there had been a great deal of testimony on the subject, and there is no positive showing that the statement affected the verdict. The trial judge concluded without doubt that the affidavits did not show any misconduct with had in all probability affected the verdict. It was within his discretion to reach that determination.

II CONTRIBUTORY NEGLIGENCE

The defendant contends that the plaintiff was contributorily negligent as a matter of law. He claims the evidence establishes negligence on the part of the plaintiff and bases his argument of the rule that as between two drivers traveling in the same direction, the following driver has the primary duty of avoiding a collision. We hold that the jury could find from the evidence that the plaintiff was not contributorily negligent. The duty of the following driver is expressed in Miller v. Cody, 41 Wash.2d 775, 778, 252 P.2d 303, 305 (1953) as follows:

Where two cars are traveling in the same direction, the primary duty of avoiding a collision rests with the following driver. In the absence of an emergency or unusual conditions, he is negligent if he runs into the car ahead. . . . The following driver is not necessarily excused even in the event of an emergency, for it is his duty to keep such distance from the car ahead and maintain such observation of that car that an emergency stop may be safely made.

(Citation omitted.) See also Vanderhoff v. Fitzgerald, 72 Wash.2d 103, 431 P.2d 969 (1967); Felder v. Tacoma, 68 Wash.2d 726, 415 P.2d 496 (1966). The following driver is to perform his duty of avoiding a collision with the preceding vehicle by allowing for those actions which should be anticipated under the circumstances. Bonica v. Gracias, 84 Wash.2d 99, 524 P.2d 232 (1974).

A following driver is not negligent as a matter of law when he collides with the preceding vehicle if the preceding vehicle stops suddenly and without warning at a place where a sudden stop is not to be anticipated. In such a situation, the jury must answer whether the following driver was traveling closer to the preceding vehicle or at a greater speed than reasonable care required under the circumstances. It is for the jury to decide whether the circumstances were such that a sudden stop or decrease of speed was to be anticipated. While the following driver has the primary duty of avoiding an accident, he is not guilty of negligence as a matter of law simply because he collides with a vehicle in front of him. Vanderhoff v. Fitzgerald, Supra; James v. Niebuhr, 63 Wash.2d 800, 389 P.2d 287 (1964). As stated in Vanderhoff on page 106 of 72 Wash.2d, on page 971 of 431 P.2d:

A prima facie showing of negligence may be overcome by evidence that some emergency or unusual condition not caused or contributed to by the following driver caused the collision, in which event the liability of the following driver becomes a jury question.

See also Western Packing Co. v. Visser, 11 Wash.App. 149, 521 P.2d 939 (1974).

A following driver is required to foresee the likelihood of sudden stops in front of him in some circumstances and not in others. Felder v. Tacoma, Supra; James v. Niebuhr, Supra. When a driver is traveling at the lawful speed limit in the center lane of a freeway, there is not an absolute requirement to presume that sudden stops or abrupt slowdowns will...