Theonnes v. Hazen

• Decision Date: 27 February 1984
• Docket Number: No. 11395-0-I,11395-0-I
• Citation: 37 Wn.App. 644,681 P.2d 1284
• Parties: Patricia THEONNES, for herself and as Guardian Ad Litem for John David Quiring, a minor child, Appellant, v. Gloria Belle HAZEN and Larry R. Hazen, her husband, Respondents.
• Court: Washington Court of Appeals

Page 644

37 Wn.App. 644

681 P.2d 1284

Patricia THEONNES, for herself and as Guardian Ad Litem for

John David Quiring, a minor child, Appellant, v. Gloria Belle HAZEN and Larry R. Hazen, her husband, Respondents.

No. 11395-0-I.

Court of Appeals of Washington,

Division 1.

Feb. 27, 1984.

Kathleen Albrecht, Atty. at Law, Seattle, for appellant.

Richard L. Gemson, Seattle, for respondents.

SODERLAND, Judge Pro Tem. ¹

Respondent was driving on a two-lane paved street where the posted speed limit was 35 m.p.h. Appellant's 9-year-old son rode his bicycle out of a driveway and onto the street. A collision occurred causing serious injury to the child. The trial judge granted summary judgment to the respondent, dismissing appellant's complaint.

The issue on this appeal is whether the affidavits of appellant's witness Terry Turner, an expert in traffic accident investigation and reconstruction, state sufficient facts to take the appellant's case to the jury. The affidavits of the expert contain calculations of speed, distances and time based on physical evidence and principles of physics. The expert calculated that the driver was traveling 42 m.p.h. and that she was 59 feet from the child on the bicycle when she first saw him. The affidavits of the expert also contain conclusions that the driver could have avoided the accident if she had been traveling straight ahead at 30 m.p.h. or, if she had taken evasive action away from the boy, the accident could have been avoided at a somewhat higher rate of speed. The expert also stated that the ability of a vehicle to cause damage increases exponentially with the speed and concluded that the excessive speed did far more damage than a speed of 10 or even 5 miles less.

Respondent's car clearly had the right of way. Driving in excess of the 35 m.p.h. speed limit would be negligence per se. Such speed, however, is not the proximate cause of a collision when the vehicle is where it is entitled to be and the driver would not have had sufficient time to avoid the collision even if driving at the lawful speed.

Plaintiff argues that the negligence of the bus driver, proximately contributing to her injury, was (a) the excessive speed of the bus, and (b) the failure of the driver "to use due care to avoid the collision during the substantial interval of time, when he was aware that a dangerous situation was developing."

This court, on several occasions, has held that the speed of an automobile, in excess of that permitted by statute or ordinance, was not the proximate cause of a collision when the automobile of the one charged with excessive speed was where it was entitled to be, and the driver would not have had sufficient time to avoid the collision had he been driving at a lawful speed. Burlie v. Stephens, 113 Wash. 182, 193 Pac. 684 (1920); Clark v. King, 178 Wash. 421, 425, 34 P. (2d) 1105 (1934); Hutteball v. Montgomery, 187 Wash. 516, 60 P. (2d) 679 (1936).

White v. Greyhound Corp., 46 Wn.2d 260, 264, 280 P.2d 670 (1955).

The driver's right of way should not be lost in a maze of details arising from split-second computation of time and distance. Kilde v. Sorwak, 1 Wash.App. 742, 463 P.2d 265 (1970). In that case the court said:

Defendant's negligence is admitted. He does not assert deception; he judged plaintiffs' speed and distance; he took the right-of-way. His negligence caused the collision; he would now have this court engage in split-second computation to bar plaintiffs' claim. This we cannot do.

We know that the right-of-way granted to the driver on the right is a strong one and ought not to be lost in the maze of details arising from split-second computation of time and distance.

Mondor v. Rhoades, 63 Wash.2d 159, 167, 385 P.2d 722 (1963).

Kilde, at 747-48, 463 P.2d 265.

The trial judge's memorandum opinion is as follows:

Viewing the evidence most favorably to the plaintiff together with all reasonable factual inferences therefrom, I remain unable to see that a speed of 42 miles per hour under the facts of this case could constitute a proximate cause of this accident so as to justify submitting that issue to a jury. Similarly, the defendant's having seen the child 59 feet away rather than 15 feet away does not permit a jury to speculate that the plaintiff [defendant], had she been traveling at the lawful limit, would have been able to stop in a straight line prior to impact, or that she would have been otherwise able to avoid the accident. It remains my belief that the defense motion for summary judgment should be granted, and that the motion for reconsideration should be denied.

Since summary judgment was entered in favor of respondents, we must accept the appellant's evidence and reasonable inferences therefrom. As did the trial court, we accept for this purpose the evidence from appellant's expert that respondent driver was going 42 m.p.h. and that she was 59 feet back from the child when she first saw him. The expert stated that the speed was calculated from the coefficient of friction measured on this street and the length of the skidmarks. By using 3/4 second reaction and the place where the skid marks began, the expert calculated the 59 feet.

We agree with the trial judge that this evidence is not sufficient to justify submitting the issue to a jury.

The physical evidence of skidmarks, as shown on the sketch made by the investigating officer, shows that the brakes engaged about 6 feet back from the edge of the driveway that the bicycle was coming out of and about 10 or 12 feet from the point of impact. The skidmarks began, of course, after the driver's reaction time. If the car was going 35 m.p.h., 10 feet would be covered in less than 1/5 second and 12 feet would take less than 1/4 second. Even though some braking action would have begun to slow the car down, the physical evidence shows that at the legal speed the car was about 1/4 second from impact when the brakes first engaged. Put another way, the driver had her reaction time plus 1/4 of a second in which to avoid the collision.

Reasonable minds cannot differ. The collision would have happened even if the car was...