Sadler v. Wagner, 274--II

• Decision Date: 03 June 1971
• Docket Number: No. 274--II,274--II
• Citation: 486 P.2d 330,5 Wn.App. 77
• Court: Washington Court of Appeals
• Parties: Wilfred SADLER, Respondent, v. Opal E. WAGNER, Administratrix of the Estate of Howard E. Pittenger, and Opal E. Wagner, Administratrix of the Estate of Onis Vera Pittenger, Appellant.

Page 77

5 Wn.App. 77

486 P.2d 330

Wilfred SADLER, Respondent, v. Opal E. WAGNER, Administratrix of the Estate of Howard E.

Pittenger, and Opal E. Wagner, Administratrix of

the Estate of Onis Vera Pittenger, Appellant.

No. 274--II.

Court of Appeals of Washington, Division 2.

June 3, 1971.

Judson T. Klingberg, of Klingberg, Houston, Reitsch, Cross & Frey, Longview, for appellant.

Wayne D. Purcell, of Studley, Purcell & Spencer, Longview, for respondent.

ARMSTRONG, Judge.

The defendant-appellant is the personal representative of Howard E. Pittenger and Onis Vera Pittenger, who were both killed in a violent daylight collision on Interstate Highway 5 at the Carrolls Avenue intersection near Kelso, Washington. Defendant appeals from a judgment entered upon a jury verdict award of $75,00 for personal injuries and automobile damage sustained by the plaintiff in the collision.

Plaintiff was driving north on Interstate Highway 5 at a speed of approximately 65 miles per hour, in the left lane of the 4-lane highway, which had to northbound and two southbound lanes. He had passed the automobile of the witness Hagen and was driving a few hundred feet ahead of the Hagen vehicle, which was in the right, northbound lane of traffic. As the plaintiff's automobile approached the Carrolls Avenue intersection he observed an oncoming southbound automobile, driven by the witness Mullensky, which was preparing to make a left-hand turn across the northbound lanes and into Carrolls Avenue. The Pittenger automobile was driving on Carrolls Avenue toward Interstate Highway 5 in a westerly direction.

Plaintiff did not see the Pittenger automobile as it stopped at the stop sign before attempting to make a left-hand turn across the limited access highway. The plaintiff stated, 'All I know is that immediately upon my right was this car coming right across in front of me, and I just hit the brakes and turned the car. It just seemed to zoom in front of me, immediately in front.' Plaintiff's vehicle struck the Pittenger vehicle broadside at a point in the left edge of the northbound passing lane. Plaintiff's vehicle left 49 feet of skidmarks before the impact.

Plaintiff's description of the collision was corroborated by the witness Mullensky, who was watching both vehicles so that he could make a left turn across the northbound lanes of traffic and into Carrolls Avenue. In describing the actions of the Pittenger automobile Mullensky said, 'All he was doing was rolling forward, and suddenly accelerated across the highway; * * *'. Mullensky stated that plaintiff was about a hundred feet south of the approximate point of impact when the Pittenger vehicle pulled out on the highway in front of him.

The Hagen vehicle was variously described as 200 feet and 200 yards behind the plaintiff's vehicle, which had shortly before passed the Hagen vehicle. Hagen had avoided the collision by slowing down and pulling off the freeway onto the shoulder of the road. Hagen said he was driving 65 miles an hour when the plaintiff slowly passed by him. The speed limit at that section of the highway was 70 miles per hour. There was no testimony that plaintiff changed his speed prior to the time that the Pittenger vehicle entered the limited access highway or that plaintiff had exceeded the speed limit at any time.

Defendant first contends that the trial court erred in withdrawing the issue of contributory negligence of the favored driver from the jury and directing a verdict in favor of the plaintiff. Defendant concedes that the decedent, Howard E. Pittenger, was the disfavored driver and was guilty of negligence as a matter of law in failing to yield the statutory right of way to plaintiff. Defendant argues, however, that reasonable minds could differ on the issue of plaintiff's contributory negligence. After considering the evidence and all inferences from the evidence in the light most favorable to the non-moving party, ¹ we find that reasonable minds could not differ on the issue of contributory negligence and the trial court was justified in withdrawing that issue from the jury and directing a verdict in favor of plaintiff.

Defendant argues that right-of-way at intersections are relative and the jury should have determined whether plaintiff had a duty to see the Pittenger automobile stop at the freeway entrance and proceed across the highway in a manner that would place the vehicle in the path of plaintiff's automobile. It is contended that plaintiff was charged with seeing what was there to be seen and his failure to keep a lookout and observe the Pittenger vehicle would constitute contributory negligence.

In considering this contention, it must be remembered that shortly before the accident plaintiff had passed the Hagen vehicle and plaintiff was driving in the lefthand northbound lane at a speed of at least 65 miles an hour, but under the 70 miles per hour speed limit. He was watching the road ahead, the oncoming Mullensky automobile which was obviously preparing to make a left turn across the lane of travel plaintiff was occupying, and other traffic on the highway. Plaintiff did not see the Pittenger vehicle until he did not have sufficient reaction time to avoid a collision. The contention that the plaintiff had a duty to keep a lookout for the Pittenger automobile was answered in Petersavage v. Bock, 72 Wash.2d 1, 5, 431 P.2d 603, 606 (1967):

Defendants argue that, even if the evidence does not provide substantial evidence of Mr. Petersavage's excess speed, it does supply substantial evidence that he failed to maintain a proper lookout, but we cannot accept this reasoning. One driving upon an arterial highway has a right to assume that cars entering upon it will yield the right of way, and he is not obliged to anticipate that vehicles standing or approaching to enter will fail to yield the right of way. Only when it becomes apparent to the favored driver that the disfavored driver will not yield, is he required to react concerning this possible danger.

When, in the exercise of reasonable care, it becomes apparent to the favored driver that the disfavored driver will not yield the right of way, the favored driver is, nevertheless, still entitled to a reasonable reaction time before he can be charged with contributory negligence. (Citations omitted.) To rule differently, would, we fear, make shambles of the right-of-way rule. Everyone driving upon an arterial highway observing vehicles at the intersections, approaching or waiting to enter, would be obliged to slow his vehicle to a near halt until he could ascertain with reasonable certainty whether the approaching vehicles intended to allow a fair margin of safety before entering upon the arterial. This, of course, defeats the very idea of arterial highways and the right of way at uncontrolled intersections, both of which are designed to allow a continuous flow of traffic at safe speeds. ²

In Zahn v. Arbelo, 72 Wash.2d 636, 637, 434 P.2d 570, 571 (1967), the court stated, 'The favored driver on an arterial protected by a stop sign has one of the strongest rights of way which the law allows.' Both Zahn and Petersavage involved an arterial, but the arterial was not a limited access highway such as we are considering in this case. The policy giving the favored driver on an arterial this strong right-of-way is even more compelling when the arterial is a high speed limited access highway.

Defendant further contends that when a vehicle is being driven on a multiple lane highway it should be driven in the right-hand lane if it is proceeding slower than the maximum speed, except when it is overtaking or passing another vehicle. She argues that since plaintiff was possibly 200 yards ahead of the vehicle he had passed he should have moved back into the right-hand lane of traffic. In support of this contention defendant cites RCW 46.61.100(2):

Upon all roadways and vehicle proceeding slower than the legal maximum speed or at a speed slower than necessary for safe operation at the time and place and under the conditions then existing, shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection, exit, or into a private road or driveway when such left turn is legally permitted.

Even if we were to assume that plaintiff should have moved back into the right-hand lane of traffic, and we could not find that he had such a duty under the circumstances of this case, there is a more compelling reason why he would not be negligent as a matter of law by his failure to change lanes. Although there are no cases defining the purpose of the statute, it is obvious that it seeks to eliminate the hazard of slower moving vehicles driving in the left-hand lane and thereby impeding safe and expeditious passing by vehicles driving at the maximum rate of speed. It was not designed to regulate the rights of vehicles at intersections. The rule is well settled that violation of a statute is not negligence per se except as to persons within the class intended to be protected by the statute. Clevenger v. Fonseca, 55 Wash.2d 25, 345 P.2d 1098 (1959). Defendant was...