Tobias v. Rainwater

Decision Date17 August 1967
Docket NumberNo. 38770,38770
CourtWashington Supreme Court
PartiesMax TOBIAS, Plaintiff, v. Eddie K. RAINWATER, Appellant, Edgar Batiste and Jane Doe Batiste, his wife, comprising a marital community, Respondents.

Walthew, Warner & Keefe, James E. McIver, William Merchant Pease, Seattle, for appellant.

Reed, McClure & Moceri, Thomas W. Huber, Seattle, for respondents.


This action was originally commenced by plaintiff, Max Tobias, against appellant for property damage to his automobile resulting from an accident which occurred at the intersection of 20th Avenue and East Olive Street with East Madison Street in Seattle. 1 The complaint alleged that the accident, in which the automobile driven by appellant and one driven by plaintiff Tobias, collided, was the result of the combined negligence of appellant and one Batiste, 2 respondent herein.

Appellant denied that he was negligent, and cross-complained against respondent for personal injuries and property damage, alleging that respondent was negligent in failing to look out for and yield the right of way, and that such negligence was the proximate cause of the accident. Respondent asserted that any harm suffered by appellant was the result of his own negligence.

A voluntary nonsuit was entered on behalf of plaintiff, Tobias, and the case proceeded to trial upon the cross- complaint of appellant. The court, at the conclusion of the trial, entered judgment on the jury verdict for respondent, from which appellant brings this appeal.

The salient facts may be summarized as follows:

In the afternoon of Thursday, July 16, 1964, at about 4:30 or 5 p.m., appellant was proceeding east on Madison Street from 19th Avenue, where he had stopped for a red stop light, toward 20th Avenue. Madison, at this point, is a four-lane arterial highway, sloping down from 19th Avenue. In the car with appellant was a friend, Elijah Wafer, and a man known to both, but whose name they were unable to remember.

Respondent, who had taken a friend to the grocery store and was returning to his home with the friend, was proceeding north on 20th and came to a full stop at the stop sign before entering Madison.

Plaintiff, Tobias, was traveling west on Olive, and likewise came to a full stop at the stop sign at the entrance to Madison.

Respondent testified that he looked in both directions before moving out onto Madison and saw no cars whatsoever. As he proceeded across Madison, preparatory to making a left turn onto Madison, he again looked to the left and saw appellant's automobile about four car lengths from him. He testified that he saw appellant's car swerve to the right. He proceeded on across Madison and stopped on the far right-hand side of the street headed west.

Appellant testified that he resumed his journey after having stopped for the stop light at 19th and proceeded down Madison. When respondent's car pulled out in front of him, he jammed on his brakes and swerved to the right. In doing so, he lost control of his car and collided with the Tobias vehicle, which had remained stopped at the stop sign on Olive.

Mr. Tobias testified that, after the vehicle driven by respondent pulled out onto Madison from the stop sign, he saw appellant's automobile coming at him, put on his brakes, and braced himself.

Although there is dispute in the testimony as to the distance one can see up Madison Street from the stop sign on 20th Avenue, there was substantial evidence that the view is unobstructed at least to the stop light on 19th Avenue where that street intersects Madison. It is not disputed that appellant had stopped at this intersection before proceeding down Madison toward the point where the collision with the Tobias vehicle occurred.

There is considerable dispute, however, as to whether appellant was exceeding the speed limit of 30 miles per hour on Madison Street.

According to the testimony of appellant and his passenger, Mr. Wafer, appellant was not exceeding the speed limit. Respondent gave no estimate as to the speed of appellant's vehicle, for, according to his testimony, he viewed the oncoming automobile for only a moment before the collision.

Nor could plaintiff Tobias give an estimate of the speed of appellant's vehicle, for he, too, had only a momentary view of the car before impact.

Two disinterested witnesses, who were in the Pacific Heating Oil Company office on the corner of 20th and Olive at the time of the accident, were not permitted by the trial court to testify before the jury as to their estimate of the speed of appellant's vehicle. The trial court properly ruled that they did not have sufficient time in viewing the accident to validly estimate the speed. They did express the view, out of the presence of the jury, that appellant was traveling at a speed of up to 45 miles per hour.

Therefore, the jury was without testimonial evidence as to the speed of appellant's vehicle except for that of appellant himself or his passengers. However, the jury could properly consider on this question, the length of the time appellant's automobile skidded (which was testified to by the Pacific Heating Oil employees), the fact that appellant lost control of his vehicle, and the force of the impact with the Tobias vehicle and the damage caused thereby.

Therefore, for the purposes of this discussion, we shall assume that the jury decided the question of speed adversely to appellant, and treat the issues presented as if appellant were, in fact, exceeding the speed limit at the time of the accident.

In order that the discussion to follow may be placed in proper perspective, one matter must be settled at the outset. Appellant seemingly contends that this is not a case involving two vehicles 'simultaneously approaching' a given point within the intersection, 3 contending that there was never a 'near' collision between appellant and respondent, and that the place where the two cars passed each other was outside the intersection (i.e. west of it on Madison).

This court has, several times, held that, where two cars collide within an intersection, they are 'simultaneously approaching a given point within the intersection'. Martin v. Hadenfeldt, 157 Wash. 563, 289 P. 533 (1930); Hauswirth v. Pom-Arleau, 11 Wash.2d 354, 119 P.2d 674 (1941); Wilkinson v. Martin, 56 Wash.2d 921, 349 P.2d 608 (1960). However, the converse does not necessarily follow.

In Milne v. City of Seattle, 20 Wash.2d 30, 145 P.2d 888 (1944), this court held, regarding a similar contention made by a party, that the rules of simultaneous approach were applicable to a situation where, although the collision occurred without the intersection, the train of circumstances from which the collision resulted had its origin in the situation of the drivers as they entered the intersection.

If a disfavored driver enters an intersection at such a time and in such a way as to produce an emergency situation in which the favored driver is unable, in the exercise of reasonable skill and judgment to avoid a collision, the disfavored driver's failure to yield the right of way at the intersection would constitute negligence Per se (Miller v. Asbury, 1942, 13 Wash.2d 533, 125 P.2d 652), even though the resultant collision occurs outside the bounds of the intersection. Bos v. Dufault, 1953, 42 Wash.2d 641, 257 P.2d 775; Milne v. City of Seattle, 1944, 20 Wash.2d 30, 145 P.2d 888; Rutger v. Walken, 1943, 19 Wash.2d 681, 143 P.2d 866; Hook v. Kirby, 1933, 175 Wash. 352, 27 P.2d 567. (Nelson v. Molina, 53 Wash.2d 412, 416, 334 P.2d 170, 172 (1959).)

See, also, Mitchell v. Cadwell, 188 Wash. 257, 62 P.2d 41 (1936); Bown v. Fleischauer, 53 Wash.2d 419, 334 P.2d 174 (1959). Clearly, what the statute requires is that the vehicles be simultaneously Approaching a given point in the intersection, not that they simultaneously arrive at that point.

Therefore, notwithstanding the fact that no collision occurred in the intersection between appellant and respondent, this is a 'right of way' case (i.e. appellant and respondent were approaching a given point in the intersection) and will be treated as such. Appellant, proceeding as he was on the protected arterial highway, was the favored driver, and respondent, confronted by a stop sign, was the disfavored driver.

The statute in effect at the time of the accident, RCW 46.60.170, provided that:

The operator of a vehicle shall stop as required by law at the entrance to any intersection with an arterial public highway, and having stopped shall look out for and give right of way to any vehicles upon the arterial highway simultaneously approaching a given point within the intersection, whether or not his vehicle first reaches and enters the intersection: Provided, That this section shall not apply to vehicles entering an intersection which is posted with the 'Yield Right of Way' sign.

The Seattle Traffic Code, § 21.12.220, contains substantially the same requirements.

Thus, the obligations imposed by the statute and code upon respondent, the disfavored driver, were to: (1) stop at the entrance to the intersection; (2) having stopped, look out for vehicles upon such arterial highway simultaneously approaching a given point within the intersection, and (3) give right of way to such approaching vehicles upon the arterial highway. Hauswirth v. Pom-Arleau, supra. Clearly, if respondent did not comply with those obligations, and his failure was the proximate cause of the accident, he must be held negligent as a matter of law.

The basic rules relative to right of way (3) above were set forth in Martin v. Hadenfeldt, supra, as follows:

1. All rights of way are relative, and the duty to avoid accidents or collisions at street intersections rests upon both drivers.

2. The primary duty of avoiding such accidents rests upon the driver on the left, which duty he must perform with reasonable regard to the maintenance of a fair margin of safety...

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