Ulve v. City of Raymond, 34023

• Decision Date: 07 November 1957
• Docket Number: No. 34023,34023
• Parties: Beulah ULVE, as Executrix of the Estate of Gearold B. Ulve, deceased, Respondent, v. The CITY OF RAYMOND, a Municipal Corporation, Appellant.
• Court: Washington Supreme Court

Page 241

51 Wn.2d 241

317 P.2d 908

Beulah ULVE, as Executrix of the Estate of Gearold B. Ulve deceased, Respondent, v. The CITY OF RAYMOND, a Municipal Corporation, Appellant.

No. 34023.

Supreme Court of Washington, Department 1.

Nov. 7, 1957.

Kenneth W. Hill, Raymond, Lester T. Parker, Aberdeen, for appellant.

Kennett, McCutcheon & Soderland, Seattle, James E. Duree, Pros. Atty. South Bend, Hiram E. Washburn, Tacoma, for respondent.

WEAVER, Justice.

A jury returned a verdict for defendant, the city of Raymond. The city appeals from an order granting plaintiff a new trial.

The order granting a new trial amply states the reasons therefor, as required by the rule of court. Superior Court Rule 16, 34A Wash.2d 117, as amended, effective July 1, 1954. The reasons set forth by the trial judge may be placed in two categories: The first, that three instructions given were erroneous statements of law; hence, misleading. The second, that substantial justice had not been done because of three situations that arose during trial.

In brief, the basic facts, which we must consider at this point of the opinion, are these:

First and Third streets in the city of Raymond are parallel and extend north and south. Alder street, which parallels the south fork of the Willapa river, intersects First and Third streets just north of the river. Third street bridges the river; First street extends south of Alder street to a dock on the north bank of the river. The driver of an automobile, who proceeds south on First street and desires to cross the river, must turn left on Alder, proceed two blocks to the intersection of Alder and Third streets at the bridge, and then turn right in order to cross the bridge.

February 16, 1952, Mr. Ulve, Plaintiff's husband, left the vicinity of Lacey, Washington, to drive to Astoria, Oregon. He telephone his wife from Raymond about eleven p. m. The call was not completed, because he did not have the proper change for the pay telephone, but his wife heard his conversation with the telephone operator and recognized his voice.

Mr. Ulve's body and automobile were recovered from the waters of the south fork of the Willapa river, just off the dock at the end of First street in Raymond, on February 18, 1952.

In general, respondent's case rests upon the proposition that appellant city created and maintained an inherently dangerous condition, consisting of the unmarked intersection, the approach and dock leading to the river, which approximately caused the death of Mr. Ulve.

The city's first assignment of error is directed to the following, which appears in the order granting a new trial 'Instruction No. 18 contained an erroneous standard for testing the conduct of the decedent and a standard contrary to that set forth in Instruction No. 19, which in fact contained the appropriate and proper standard. Instruction No. 18 was further erroneous in that it was argumentative and subject to being constructed by the jury to be a comment on the evidence by the court.'

Instruction No. 18, to which the trial court directed the above criticism, reads as follows:

'Instruction 18. You are instructed that fog is one of the most dangerous conditions that beset the driver of a motor vehicle. One driving through fog must exercise a very high degree of care. Fog is not a latent or concealed danger. It gives ample notice of its presence. The driver of an automobile proceeding through fog must note all matter which must be considered from the standpoint of the maintenance of due regard for his own safety and that of others. If you find from a fair preponderance of the evidence in this case that the deceased, Gearold B. Ulve, was driving his automobile at the time of the accident, when the visibility was impaired by fog conditions, then it was his duty to exercise a very high degree of care for his own safety. And if you find from a fair preponderance of the evidence that he failed to exercise such high degree of care and that such failure was the proximate cause of his death, then the plaintiff herein cannot recover and your verdict must be for the defendant.' (Italics ours.)

This court has never repudiated the doctrine that the degree of care required is that degree which a reasonably prudent person would have exercised under the same or similar circumstances. Ewer v. Johnson, 1954, 44 Wash.2d 746, 757, 270 P.2d 813.

'The prevailing view is that there are no 'degrees' of care or negligence, as a matter of law; there are only different amounts of care as a matter of fact; and 'gross' negligence is merely the same thing as ordinary negligence, 'with the addition,' as Baron Rolfe once put it, 'of a vituperative epithet." Prosser, Law of Torts (2d ed.) 149.

Of course, what would be reasonable or ordinary care under one set of facts might not be reasonably or ordinary care under another set of facts. The difference would not be the degree of care used, but rather the amount of care. Morehouse v. Everett, 1926, 141 Wash. 399, 252 P. 157, 58 A.L.R. 1482. As the danger becomes greater, the actor is required to exercise caution commensurate with it. It is self-evident and inherent from the experience of everyone, that the amount of care that must be exercised is dependent upon the facts of the situation; but the degree of care does not change. 'The standard of care is the same. The test is the same.' Ewer v. Johnson, supra.

Professor Prosser illustrates it thus:

'It is sometimes said that a blind man must use a greater degree of care than one who can see, but this means nothing more than that he must take the precautions the ordinary reasonable man would take if he were blind.' Prosser, Law of Torts (2d ed.) 126. (Italics ours.)

In short, the amount of care exercised must be commensurate with the circumstances.

If the trial judge is compelled, by the circumstances of the case before him, to instruct upon the amount of care which must be exercised under the circumstances, the path appears to be both narrow and illdefined. On the one hand is the pitfall of commenting on the evidence; on the other, of emasculating the rule.

This court, at different times, has treated such a situation in several ways--all without changing the basic rule.

In Hubbard v. Embassy Theatre Corp., 1938, 196 Wash. 155, 82 P.2d 153 (a case which reviews many prior decisions), the court held that an instruction that required plaintiff 'to exercise a greater degree of diligence' was erroneous and prejudicial because it conflicted with the 'prudent man' rule. In Ewer v. Johnson, supra, the trial judge instructed that one driving an automobile into a cloud of dust 'must exercise a very high degree of care.' This court designated the instruction as mere advice to the jury.

'* * * as to the amount of care which a careful and prudent person should exercise in entering a dust cloud * * *.' (Italics ours.)

and determined that the jury was not misled nor the basic rule violated.

There is also a third possibility. We have held on numerous occasions that the presumption of prejudice arising from an erroneous instruction may be overcome if the instructions, when all of them are considered, reveal that the jury has not been misled nor confused by the erroneous instruction.

The trial judge rejected the third possibility and held that the rationale of Ewer v. Johnson, supra, did not apply. In this we believe he was correct. The italicized portion of instruction No. 18, supra, is not an introductory statement; nor is it explanatory of the amount of care required by the circumstances. The instruction 'contains an erroneous standard for testing the conduct of the decedent.' It does not complement the correct rule which is stated in a subsequent instruction. It is in conflict with it; hence, confusing to the jury. The city's first assignment of error is not well taken.

In granting the new trial, the court concluded that instruction No. 23 was prejudicially erroneous. It reads as follows:

'Instruction No. 23. You are instructed that on the question of speed, you may consider the force and violence of the impact [*] and the length of the skid marks, if any, made by the decedent's automobile as he approached the end of the city dock, and the distance said automobile traveled off the end of the dock.'

The trial judge said:

'* * * I just took it for granted that 'if any' implied [applied] to both the impact and the skidmarks, but I can see where a jury might read it that they can consider the force and violence of the impact. In other words, I am telling them that took place; whereas, if I had included in there [at the asterisk above] the words 'if any,' that might have removed the vice of that particular instruction.'

Were this the sole reason for granting a new trial, we would be inclined to disagree with the trial judge. The jurors were instructed that they are the sole and exclusive judges of the evidence; that the court is not permitted to comment on the evidence and 'it has not intentionally done so'; and that if it appears to the jury that the court has commented on the evidence, it 'shall disregard such comment entirely.'

It is difficult for us to conclude that the instruction was prejudicial--for the reason given by the trial court. However, if the instruction be appropriate upon a retrial of the case (which will be discussed later), the trial court's criticism of it can easily be remedied.

The respondent urges that instruction No. 23 (quoted supra) and instruction No. 27 should not have been given, because there is no evidence to justify the submission of the issues covered by said instructions.

A railroad track lies between, and parallel to, Alder street and the river. It crosses First street at approximately a right angle, a short distance south of the intersection of First and Alder. A railroad crossing sign and a stop sign were located on the west side of First street, forty-one feet south of the center of the intersection and...