State v. Phillips
| Decision Date | 05 June 1970 |
| Docket Number | 1124,Nos. 1117,s. 1117 |
| Citation | 470 P.2d 266 |
| Parties | STATE of Alaska, Appellant, v. E. Bradford PHILLIPS, Administrator of the Estate of Patricia Phillips, Deceased, and E. Bradford Phillips, individually, and as Father and Next Friend of Sheila Toi Phillips and Lester Syren, Appellees. E. Bradford PHILLIPS, Administrator of the Estate of Patricia Phillips, Deceased, and E. Bradford Phillips, individually, and as Father and Next Frend of Sheila Toi Phillips, Cross-Appellants, v. STATE of Alaska, Jack Morrow, Claude Rogers, and Cosby Steen, Cross-Appellees. |
| Court | Alaska Supreme Court |
Charles Hagans, Hagans & Opland, Anchorage, for appellant, State of alaska.
Thomas E. Curran, Jr., and John M. Savage, Savage, Curran, Johnson & Palmier, Anchorage, for appellees.
Before BONEY, C. J., DIMOND, RABINOWITZ, and CONNOR, JJ., and OCCHIPINTI, Superior Court Judge.
These appeals arise out of an automobile accident which occurred in December 1966, approximately five miles south of Anchorage on the Seward Highway. At 8:30 a. m. on December 23, 1966, decedent Patricia Phillips was driving towards Anchorage. With her in her 1965 Corvair Monza was her four-year old daughter.
As Mrs. Phillips was proceeding north, her vehicle went into a broad-side skid, approximately across from the Yucca Club, a highway bar located at the corner of Seward Highway and 79th Avenue. While in the broad-side, Mrs. Phillips' vehicle struck a pickup proceeding south on the opposite side of the road driven by plaintiff Lester Syren. Mrs. Phillips' vehicle was demolished, and both she and her daugher were ejected from the vehicle by the force of the impact. Mrs. Phillps suffered injuries which subsequently culminated in her death some 17 days later. Mr. Syren and the minor child, Sheila Toi, also received serious injuries. 1
Thereafter, E. Bradford Phillips, as administrator of the estate of his deceased wife, individually and as next friend of their daughter Sheila Toi Phillips, together with Lester Syren, sued the State of Alaska and three officials of the Department of Highways of the State of Alaska. After a lengthy trial without a jury, judgments were entered against the State of Alaska and cross-appellees in favor of Lester Syren, Sheila Toi Phillips, and E. Bradford Phillips individually, as administrator, and as next friend. This appeal and cross-appeal followed.
LIABILITY.
As to liability issues, the gist of the State of Alaska's appeal is that the trial judge erred in his findings of fact and conclusions of law in holding that the state was negligent, and further erred in deciding the issue of Patricia Phillips' contributory negligence in her favor. This court's scope of review of judge-tried cases has been previously delineated in Civil Rule 52(a) and numerous opinions. 2 It is now well established that our review is limited to a determination of whether the trial court's findings are clearly erroneous. A finding is not clearly erroneous unless from a review of the entire record we are left with a 'definite and firm conviction that a mistake has been made.' 3
The reason is that the trial judge, who has seen and heard the testimony, is in a better position to judge the credibility of witnesses and the weight to be attached to their testimony than an appellate court reviewing a printed record. 4
We have also held that where the trial judge's findings are based on nondemeanor sources, such as documentary evidence, deposition testimony, or transcribed testimony, our scope of review is broader than under the cleraly erroneous standard. 5
In this case, appellant State of Alaska argues that we should employ a broader type of review than is exercised under the clearly erroneous criterion because of the presence of 'substantial documentary and demonstrative evidence' in the record which renders the oral evidence pertaining to liability issues extremely doubtful. 6
We do not believe that the record in the case at bar presents an appropriate instance for employment of a standard of review different from the clearly erroneous test. Adhering to our normal scope of review, we hold that the trial court's findings of fact concerning the state's negligence and decedent Patricia Phillips' lack of contributory negligence were not clearly erroneous. We therefore affirm the trial court's conclusions of law based on these findings of fact.
In his memorandum decision, the trial judge said in part:
It is impossible to reconstruct exactly what happened to Mrs. Phillips' car, from the testimony, as to what caused it to go out of control, and into its fatal skid. However, from logical inferences to be drawn from the testimony, I must deduce that the skid was the product of the forces influencing the direction of travel of the vehicle, that is the tendency to drift off the paved portion, onto the shoulder, and the eroded pavement lip or rut described by the witnesses together with the icy conditions of the road on that morning. There was no showing that Mrs. Phillips knew, or should have known that this combination of factors should have been anticipated, and that defensive driving tactics employed. Without hearing her explanation of what happened, I am not, in the light of the evidence, prepared to assume contributory negligence on her part. The defense of contributory negligence, accordingly, has not been proven.
Appellant State of Alaska had the burden of proving by a preponderance of the evidence that Patricia Phillips was contributorily negligent. 7 Our study of the entire record shows that there is ample evidence to support the trial judge's findings of fact, and inferences from the evidence, regarding Patricia Phillips' alleged contributory negligence. Admittedly, the trial court's memorandum opinion contains several confusing references to the presumption of Patricia Phillips' due care, and the legal effect of her having left her lawful lane of traffic in violation of pertinent highway regulations. Viewed in isolation, the departure of decedent's vehicle from its lane of traffic constituted evidence of contributory negligence under Rogers v. Dubiel, 8 so rendered inappropriate reliance on any presumption of due care. In the case at bar, however, there is ample evidence that antecedent negligence on the part of the State of Alaska caused Patricia Phillips' vehicle to leave its assigned lane of traffic. This same antecedent negligence, combined with the then icy condition of the Seward Highway, furnished substantial evidence of excuse for decedent's violation of applicable highway regulations, overcoming the inference of contributory negligence from violation of highway regulations.
We need not summarize the mass of relevant evidence pertaining to the primary issue of the State of Alaska's negligence and subsidiary issues of notice, standards of highway maintenance, and causation. It is sufficient to state that our study of the entire record disclosed that the state's negligence was shown by a preponderance of the evidence. In this regard, the trial judge found in part that at the location of the Phillips' accident
there was a wide, shallow rut of uneven varying depth on the east side of the highway, sufficient to cause a vehicle encountering it under certain circumstances to go out of control.
This rut is the same highway defect alluded to by the trial judge in his findings pertaining to contributory negligence. In regard to this rut, the record shows that the state allowed this condition to exist in one of the most heavily travelled sections of highway in the State of Alaska. The record also supports the trial court's findings that due to the physical characteristics of this section of the highway, a vehicle travelling in the direction of Anchorage would, given icy surface conditions, have a tendency to drift to the right and go off the paved portion of the highway and onto the shoulder. Once on the shoulder, the right wheels of the vehicle could become engaged in the rut causing the vehicle to go out of control. Review of the evidence in the case at bar also leads to the conclusion that the State of Alaska had prior notice of the dangerously defective condition of the Seward Highway in the location of Phillips' accident; that the state failed to undertake appropriate reasonable measures to alleviate existing dangerous conditions; that the state's failure in this regard constituted a breach of the duty of care it owed to decedent Patricia Phillips, Sheila Toi Phillips, and Lester Syren; and that this breach of duty was the proximate cause of the fatal accident. We therefore affirm the trial judge's resolution of liability issues.
Two other specifications of error relating to issues of liability remain. Appellant State of Alaska has specified as error the admission into evidence of testimony concerning a fatal accident which occurred on the Seward Highway one week prior to the Phillips' crash approximately one mile north of the site of the Phillips' accident. Appellant's position is that evidence of another accident is only relevant to show a dangerous or defective condition where the other accident took place under substantially similar conditions as the accident in question. 9
In his memorandum decision, the trial judge referred to the other accident in the following manner:
An earlier fatal accident involving similar conditions about one mile north, a week earlier was not investigated to determine its cause. A Mrs. Vasconi was killed. No system of obtaining reports from State Troopers of the investigation of the cause of accidents caused by highway defects appeared to have been put into effect. * * *
In denying appellant's motion to strike evidence relating to this other fatal accident, the trial court ruled
the evidence thereof relevant as to standards of maintenance on the more heavily travelled portion of control section 113124, and as notice to the Department that such standards of maintenance were...
To continue reading
Request your trial
-
Grove By and Through Grove v. Myers
...personal injury and wrongful death actions, unless the statute or court rule in question provides otherwise. See State v. Phillips, 470 P.2d 266, 272, 273-74 n. 27 (Alaska 1970); Smith v. JBJ Ltd., 694 P.2d 352, 354 (Colo.Ct.App.1984); Pray v. Narragansett Improvement Co., 434 A.2d 923, 930......
-
Bond v. City of Huntington, 14307
...although it has been allowed in several jurisdictions. In re Air Crash on May 25, 1979, 480 F.Supp. 1280 (D.C.Ill.1979); State v. Phillips, 470 P.2d 266 (Alaska 1970); Wetz v. Thorpe, 215 N.W.2d 350 (Iowa Most commentators take the position that there are certain elements of damages in a pe......
-
Air Crash Disaster Near Chicago, Illinois, on May 25, 1979, In re
...Lemrick v. Grinnell Mutual Reinsurance Co., 263 N.W.2d 714 (Iowa 1978); Wetz v. Thorpe, 215 N.W.2d 350 (Iowa 1974); State v. Philips, 470 P.2d 266 (Alaska 1970). In Moore-McCormack and Stiles, the courts allowed awards for prejudgment interest in death actions under the Death on the High Se......
-
Trans-Global Alloy Ltd. v. First Nat. Bank of Jefferson Parish
...to make a plaintiff whole." Laudenberger v. Port Auth. of Allegheny Cty., 496 Pa. 52, 436 A.2d 147 (1981); see also State v. Phillips, 470 P.2d 266 (Ala.1970); Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212 (Fla.1985); Emery v. Tilo Roofing Co., 89 N.H. 165, 195 A. 409 (1937); Cavnar ......