Sandberg v. Spoelstra

• Decision Date: 23 June 1955
• Docket Number: No. 32981,32981
• Citation: 285 P.2d 564,46 Wn.2d 776
• Parties: O. H. SANDBERG, Appellant and Cross-respondent, v. Ted SPOELSTRA and John Spoelstra, doing business as Speelstra Logging Company, Respondents and Cross-appellants.
• Court: Washington Supreme Court

Page 776

46 Wn.2d 776

285 P.2d 564

O. H. SANDBERG, Appellant and Cross-respondent, v. Ted SPOELSTRA and John Spoelstra, doing business as Speelstra Logging Company, Respondents and Cross-appellants.

No. 32981.

Supreme Court of Washington, Department 2.

June 23, 1955.

Rehearing Denied Aug. 4, 1955.

Joseph H. Johnston, Port Angeles, for appellant.

Howard V. Doherty, Port Angeles, for respondents.

HILL, Justice.

The driver of plaintiff's loaded logging truck and trailer, traveling east between Forks and Port Angeles, made a left turn off the highway in order to park at the Lake Sutherland store while he had coffee and discussed with another of plaintiff's drivers a possible emergency with reference to the condition of the latter's load. The surfaced part of the highway at that point was nineteen feet and nine inches wide and was divided into east- and west-bound traffic lanes by a center stripe. Some 375 feet east of where the truck and trailer were parked there was a curve in the road which cut off the view beyond.

Upon returning to the highway, plaintiff's truck become involved in a collision with a westbound logging truck loaded with its own trailer, belonging to the defendants. Coming around the curve in the westbound lane, the defendants' driver saw the plaintiff's 'rig' and applied his brakes; his truck skidded down the highway and nosed into a bank alongside the road; the truck body swung crosswise of the road and hit the bumper and radiator of the plaintiff's truck. At the point and time of impact the plaintiff's truck was entirely in its right, or the eastbound, lane of the highway, but it will be assumed that the trailer or a portion of it was approximately a foot and a half on the wrong side of the center line.

Both vehicles sustained substantial damage. The plaintiff sought recovery against the defendants, who cross-complained. The trial court concluded that both drivers had been negligent and that the negligence of each was a proximate cause of the collision; hence neither party was entitled to recover from the other. Judgment was entered dismissing the complaint and cross-complaint. Plaintiff appealed and the defendants cross-appealed. Because of the cross-appeal, we shall continue to refer to the parties as plaintiff and defendants.

The principal issue on this appeal is whether the negligence of the plaintiff's driver was a proximate cause of the collision. Before taking up that issue we would dispose of one ground of negligence urged by the defendants and apparently relied upon to some extent by the trial court. We are satisfied that the driver of the plaintiff's truck was not negligent in making a left turn off the highway for the purpose of parking at the Lake Sutherland store. Whether he was required to do so by an emergency is entirely immaterial. The statute relied upon by the defendants is RCW 46.60.010 [cf. Rem.Rev.Stat., Vol. 7A, § 6360-75], which requires drivers to 'at all times drive * * * to the right of the center of such highway', except when overtaking and passing, or avoiding obstructions. This statute does not prohibit a left turn for the purpose of leaving the highway at an intersection or any other place. We have found no cases in which it is even suggested that such a statute is applicable to left turns from the highway; to the contrary, the right of a driver to make a left turn at a point other than an intersection was recognized in Onkels v. Stogsdill, 1929, 151 Wash. 194, 275 P. 692. In that case, a judgment for damages in favor of the driver who made such a turn was affirmed.

However, we held in the Onkels case--and adhered to the rule in Glick v. Ropes, 1943, 18 Wash.2d 260, 138 P.2d 858--that one who undertakes such a turn for the purpose of leaving the highway must exercise extraordinary care and caution for the preservation of his safety and to avoid injury to others traveling upon the highway. Failure to exercise such care was not shown in the present case. The negligence of the plaintiff's driver is to be judged not by the manner in which he reached the parking place but by the way he left it and regained his place on the highway.

Plaintiff's driver had a right to take the truck and trailer back onto the highway from the parking place on the private driveway, but in leaving such parking place it was his duty: (1) to bring his vehicle to a full stop at a point where, before entering the highway, he could see traffic approaching from either direction; (2) to look in both directions and observe traffic conditions; (3) to yield the right of way to all vehicles upon the highway; and (4) to adopt such additional precautions as may have been necessary to assure a reasonable margin of safety under the existing circumstances. See RCW 46.60.190 [cf. Rem.Rev.Stat., Vol. 7A, § 6360-92]; Cooney v. Tacoma Moving & Storage Co., 1930, 155 Wash. 628, 285 P. 667; Weaver v. McClintock-Trunkey Co., 1941, 8 Wash.2d 154, 111 P.2d 570, 114 P.2d 1004; Wheaton v. Stuck, 1949, 34 Wash.2d 725, 209 P.2d 377.

The testimony was widely divergent. Plaintiff's driver testified that the defendants' truck did not come into view until the plaintiff's truck was completely over the center line and in the eastbound lane. The defendants' driver testified that when he rounded the curve and first saw the plaintiff's truck and trailer it was 333 feet away and had not yet started across the highway. He testified that it was stopped but conceded that it might have been rolling slightly, and that almost immediately thereafter it 'tried to beat me across the road'; whereupon he applied his brakes, with the results hereinbefore described.

We are handicapped in any review of the defendants' driver's testimony because we do not have the advantage, which the trial court had, of a drawing on a blackboard on which the witness illustrated his testimony by reference to points 'a', 'b', 'c', 'p', and 'x'. It may well be that the drawing marked 'For Illustration Only' which appears in the respondents' (defendants') brief is an attempted reproduction of the blackboard drawing, but we cannot so assume and the drawing is no part of the record before us.

The trial court found that the negligence in the operation of the plaintiff's truck and trailer was as follows:

'That the Plaintiff caused and contributed to said accident by having parked its loaded vehicle, 60 feet in length, in a parking area immediately ahead of a blind curve and under no conditions of emergency, knowing at the time of so parking that other vehicles would be coming toward it along the highway and knowing that it must block the highway for a substantial time upon its return to its easterly route and that other vehicles travelling westerly and approaching it and having the right-of-way, might be unable to avoid collision for want of timely warning because of the blind curve; and furthermore, that although another driver and agent of the plaintiff was present at said store and parking area at all times and available to have watched for oncoming traffic and signalled the driver, Lloyd Harris, when it was safe to cross and re-enter said highway, no precaution of observation of oncoming traffic was taken by the plaintiff or either driver or agent of the plaintiff although the exercise of any such precaution might have served to prevent said accident by giving the driver Harris notice of the defendants' oncoming vehicle or of other vehicles approaching around said blind curve.'

Considered apart from the other findings, this would seem to indicate that it was the trial court's view that the parking place in front of the Lake Sutherland store was so close to the blind curve that a loaded truck and trailer sixty feet in length would block the westbound traffic lane for such a substantial period of time upon reentering the highway to pursue an easterly course that other vehicles, traveling westerly around the curve, might be unable to avoid a collision for want of timely warning, and that it would be negligence to fail to use a flagman for the purposes indicated in the finding.

A vehicle traveling forty miles an hour (the truck limit) would travel 583 feet in ten seconds, and if traveling fifty miles an hour (the maximum permitted and vehicle) would travel 733 feet in the same time. Plaintiff's driver testified that he had reached a speed of five miles an hour when he stopped because he saw that the defendants' truck was 'in trouble.' In all probability, he had not attained that speed when he started across the...