Schneider v. Forcier

• Decision Date: 21 October 1965
• Docket Number: No. 37729,37729
• Citation: 406 P.2d 935,67 Wn.2d 161
• Parties: Charles J. SCHNEIDER and Mary Lou Schneider, his wife, Appellants, v. Andrew FORCIER and Alice Forcier, his wife, and Charles H. Herberg and Jane Doe Herberg, his wife, Respondents.
• Court: Washington Supreme Court

Page 161

67 Wn.2d 161

406 P.2d 935

Charles J. SCHNEIDER and Mary Lou Schneider, his wife, Appellants, v. Andrew FORCIER and Alice Forcier, his wife, and Charles H.

Herberg and Jane Doe Herberg, his wife, Respondents.

No. 37729.

Supreme Court of Washington, En Banc.

Oct. 21, 1965.

Sullivan & Jones, Hubert M. Jones, Seattle, for appellants.

Bell, Ingram & Smith, Lewis A. Bell, Everett, for respondents.

HUNTER, Judge.

This is an appeal from dismissal of a suit in which the plaintiffs, Charles J. and Mary Lou Schneider husband and wife, seek damages for personal injuries suffered by Charles J. Schneider in an automobile accident.

The accident occurred after sunset, November 27, 1962, on a shoulderless, two-lane highway known as 'Broadway Road' in rural Snohomish County. An automobile driven by Charles H. Herberg, collided with the rear of plaintiffs' pickup truck, which had stalled on the highway while being used by plaintiffs to push their family automobile. The collision catapulted the pickup truck forward and into the rear of the family automobile, thereby crushing the plaintiff, Charles J. Schneider, who was standing between the stalled vehicles, and causing him the injuries of which plaintiffs complain.

Named as defendants were Charles H. Herberg and wife, and Andrew Forcier and wife, owners of the automobile Herberg was driving.

The trial court found that the pickup truck's taillights were visible at a distance of 3/10 of a mile; that defendant Herberg failed to observe the parked truck until within 100 feet of it; and that he was driving at a speed substantially in excess of the speed limit. It concluded that Herberg drove in a negligent manner.

It further found, however, that plaintiffs had failed to display warning devices of any kind, though they had reasonable time in which to do so. It concluded that they thereby violated RCW 46.37.450, which requires certain vehicles, among them 'motor trucks,' to display specified warning devices when disabled under such conditions; that the plaintiffs' violation of the statute constituted negligence per se and was a proximate cause of the collision and resultant injuries. It therefore held that though plaintiffs would otherwise be entitled to a judgment for damages against all defendants, the plaintiffs' contributory negligence barred recovery. Plaintiffs appeal.

Plaintiffs contend that RCW 46.37.450 does not apply to a motor truck such as theirs, whose width, as the trial court here found, is under 80 inches. Accordingly, the plaintiffs assign error to the trial court's holding that their recovery was barred because of contributory negligence.

The applicable statutes are as follows:

RCW 46.37.440:

(1) No person shall operate Any motor truck, passenger bus or truck tractor over eighty inches in overall width upon any highway outside the corporate limits of municipalities at any time unless there shall be carried in such vehicle the following equipment * * *. (Italics ours.)

RCW 46.37.450:

(1) Whenever Any motor truck, passenger bus, truck tractor over eighty inches in overall width, trailer, semitrailer or pole trailer is disabled upon the traveled portion of any highway or the shoulder thereof outside of any municipality at any time when lighted lamps are required on vehicles the driver of such vehicle shall display the following warning devices upon the highway during the time the vehicle is so disabled on the highway * * *.

(6) The flares, fusees, red electric lanterns, portable red emergency reflectors and flags to be displayed as required in this section shall conform with the requirements of RCW 46.37.440 applicable thereto. (Italics ours.)

Plaintiffs contend that when RCW 46.37.440 and RCW 46.37.450 are considered in pari materia the legislative intent is unclear. They concede that RCW 46.37.450, considered alone, literally exempts of the classes named only truck tractors whose widths are 80 inches and under from the requirement of Displaying warning devices. But plaintiffs contend that an exemption from Carrying such devices is extended to vehicles in all classes named in RCW 46.37.440 whose widths are 80 inches and under. They argue that the two statutes therefore conflict and that the ambiguity requires us to look past the language used to determine the legislative intent, as evidenced in the legislative history of the enactments. We perceive no such conflict between the two statutes.

Our first resort is to the context and subject matter of the legislation, consistent with the recognized canon of statutory construction and interpretation that the legislative intent is first to be deduced, if possible, from what it said. Martin v. Aleinikoff, 63 Wash.2d 842, 844, 389 P.2d 422 (1964). Where no contrary intention appears in the statute, a qualifying phrase such as 'over eighty inches in overall width' in RCW 46.37.440, refers back both grammatically and legally to the last antecedent, which is 'truck tractor.' Martin v. Aleinikoff, supra; Davis v. Gibbs, 39 Wash.2d 481, 236 P.2d 545 (1951); In re Andy, 49 Wash.2d 449, 302 P.2d 963 (1956); 2 Sutherland Statutory Construction, § 4921 (3d ed. 1943, Supp.1964). There is no language in the statute otherwise indicating a contrary intent and the 'last antecedent' rule therefore applies.

Any inference of such a contrary intent is dispelled by the Latter statute, RCW 46.37.450, which in clear and explicit language exempts only truck tractors 80 inches or under in overall width from the statutory requirement of displaying warning devices. Reading the statutes in parimateria the rule of construction applies, that as between two conflicting parts of a statute, that part latest in order of position will prevail, where the first part is not more clear and explicit than the last part. State ex rel. Adjustment Dept. of Olympia Credit Bureau v. Ayer, 9 Wash.2d 188, 114 P.2d 168 (1941).

The plaintiffs contend that the legislative history evinces an intention that all vehicles listed in RCW 46.37.450, supra, were intended to benefit from the '80 inch' exemption and that the contrary language resulted from a mistake in punctuation. The legislative history shows that a senate amendment (House Journal 1955--Ex.1955, p. 1137) ultimately adopted specifically struck the words of a house amendment relative to gross weight and directed: '* * * after the word 'tractor' and before the comma (,) preceding the word 'trailer' insert the words 'over eighty inches in overall width' * * *.' In view of this precise language we find no basis for the plaintiffs' argument that the legislature committed a mistake in punctuation, in the amendment of the statute.

The plaintiffs further argue that the legislature, by the amendment, must have intended to accomplish a meaningful result; that to construe the statute to exempt only truck tractors 80 inches or under in overall width from the requirement of the statute and not the other vehicles listed on the same dimensions constitutes an absurdity. This reasoning is unsound. It disregards the primary purpose of the statute, which is to give protection to the traveling public from the hazards of stalled vehicles on the highway. The plaintiffs' proposed construction of the statute would, by exempting all classes named in the statute, afford less protection to the traveling public from such hazards. If we consider the plaintiffs' argument as questioning the reasonableness of the classification of vehicles brought within the exemption, it would constitute an attack upon the validity and constitutionality of the statute. This issue was not raised in the assignments of error, and is not before us for our determination upon this appeal. Rule on Appeal 43, RCW vol. 0.

Plaintiffs contend that the trial court's construction of RCW 46.37.450 exempting truck tractors 80 inches or under in overall width is further absurd for the reason that there are no truck tractors which are 80 inches or under in overall width, and that this court should take judicial notice of such fact. We cannot say in the absence of evidence that truck tractors of such dimensions are in fact nonexistent, or that this asserted fact is notoriously and commonly known and that such information is readily available. State ex rel. O'Connell v. Yelle, 51 Wash.2d 594, 320 P.2d 1079 (1958); State ex rel. Humiston v. Meyers, 61 Wash.2d 772, 380 P.2d 735 (1963); 31 C.J.S. Evidence § 9.

For the reasons heretofore stated we are in agreement with the determination by the trial court that the plaintiffs were within the ambit of RCW 46.37.450; that they failed to display warning devices in pursuance therefo and that such failure constituted contributory negligence per se, which barred recovery.

The judgment is affirmed.

HILL, DONWORTH, WEAVER, OTT, HAMILTON and HALE, JJ., concur.

FINLEY, Judge (dissenting).

The majority opinion puts together and presents, in my judgment, an unreasonable thesis, legal conclusion, or interpretation respecting certain statutory language used by the legislature concerning the regulation of highway motor-vehicle traffic. This thesis is that the driver of a truck-tractor stalled on a public highway at night need not place flares to warn other users of the public highway, if the Truck-tractor is 80 inches wide, or less; but the driver of a Pickup truck, regardless of breadth--whether very small or very large, simply because it is a 'motor truck,' as referred to in RCW 46.37.440--when it is stalled, must place flares on the highway to warn the traveling public of danger. This, at least statutorily speaking, or in the jargon of statutory interpretation, 'poses a palpable absurdity.' Thus, I think it follows that the majority opinion is out of kilter with the cornerstone of statutory interpretation or construction, namely, 'no construction should be given to a statute which leads to gross injustice or absurdity.' Lenci v. City of Seattle, 63 Wash.2d 664, 671, 388 P.2d 926, 931 (1964), quoting In re,...