Wheeler v. Portland-Tacoma Auto Freight Co.

• Decision Date: 15 March 1932
• Docket Number: 23619.
• Citation: 9 P.2d 101,167 Wash. 218
• Parties: WHEELER et ux. v. PORTLAND-TACOMA AUTO FREIGHT CO.
• Court: Washington Supreme Court

9 P.2d 101

167 Wash. 218

WHEELER et ux. v. PORTLAND-TACOMA AUTO FREIGHT CO.

No. 23619.

Supreme Court of Washington

March 15, 1932

Department 1.

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Action by P. A. Wheeler and wife against the Portland-Tacoma Auto Freight Company. From judgment for plaintiff, defendant appeals.

Affirmed.

E. L. McDougal, of Portland, Or., and Reynolds Ballinger, Hutson & Boldt, of Seattle, for appellant.

PARKER J.

The plaintiffs, Wheeler and wife, commenced this action in the superior court for King county seeking recovery for injuries to their persons and injuries to their automobile, suffered as they claim, as the result of the negligence of the servant of the defendant, auto freight company, in leaving its large auto freight truck and trailer standing, without proper guard or warning to traffic, upon the paved roadway of the Pacific highway some four miles south of the city limits of Seattle. The cause proceeded to trial in the superior court for King county, sitting with a jury, and resulted in verdict and judgment awarding to Wheeler and wife recovery against the company, from which it has appealed to this court.

The jury was warranted in viewing the principal outstanding facts to be as follows: There are two paved roadways upon the Pacific highway extending a distance of several miles north and south from the scene of the accident. Each roadway is twenty feet wide. They are separated by a dirt or gravel strip, level with the pavements, four feet wide. The east roadway is used exclusively by north-bound traffic. The west roadway is used exclusively by south-bound traffic. Adjoining the west pavement, at the scene of the accident, there is a firm shoulder on which vehicles can conveniently park. The company's truck, while proceeding south, first stopped on the pavement because of the stoppage in the flow of gasoline from its tank to its carburetor. This occurred near the foot of a 4 per cent. up grade on the pavement. The driver of the truck, with the aid of another driver of the company, who happened to be then passing, going north, succeeded, after a short time, in getting the truck started. When the truck had then proceeded about four hundred feet, somewhat beyond the top of the 4 per cent. grade, its motor again stopped, the cause being apparently the same. The truck then stood with its left wheels approximately two feet east of the center of the west roadway; thus leaving approximately only eight feet of the west roadway for following vehicles to pass going south. The two drivers again commenced working on the motor to get it started. After the truck and trailer had remained in this position for a period of from ten to twenty minutes, the automobile of Wheeler and wife, in which they were riding and he was driving proceeding south on the west pavement, came in contact with the left rear corner of the trailer, causing the injuries to their persons and to their automobile for which they sought and were awarded recovery. This occurred at approximately 7:30 o'clock in the evening of February 12th. That was after the coming of darkness of the night. There was not then displayed at the rear of the trailer a lighted red light, as required by law. The color of the trailer was such that it was not readily observable at night by a driver approaching it from the rear, until he would come within a very short distance of it. Wheeler was driving at about thirty-five miles per hour. This was within the lawful speed limit on that portion of the highway. His lights and brakes were in good condition, but he did not see the trailer until about thirty feet from it, when, in trying to pass it on the left, his car came in contact with the left rear corner of the trailer.

It is contended in behalf of the company that the trial court erred to its prejudice 'in permitting plaintiff to prove that defendant's driver, after the accident, placed or caused to be placed flares on the highway to avoid another accident.' The portion of the record upon which this contention is rested is somewhat involved. We think, however, it is sufficient for present purposes for us to quote from the quotations from the record made by counsel for the company in their brief. During the examination of a witness for Wheeler and wife, the following occurred:

'Mr. Oldham [counsel for Wheeler and wife]: Q. Were you present at the time any flares were put out? A. Yes, sir.

'Q. What were they? A. Those regular red flares that they use.

'Q. For what purpose?

'Mr. Reynolds [counsel for the company]: I object to this as being immaterial, what was done after the accident happened. He can inquire what was done Before the accident happened, what they did to prevent other people being hurt.

'Mr. Oldham: If he realized he had a stalled truck, it would be the duty of the truck driver to use due diligence to warn people of danger.

'The Court: I think he may answer the question. [The question was not answered, but the examination proceeded].

'Q. Do you know where the flares were? A. The first two flares that came out I furnished the flare. I do not remember the man that put them out.

'Mr. Reynolds: I move to strike out 'that he furnished the flares,' or flares were put out after the accident happened, as being wholly immaterial and having a tendency to mislead the jury.

'Mr. Oldham: I will consent that this may be stricken out, about his furnishing the flares.

'The Court: All right, it may be stricken.

'Q. Do you recall whether or not any flares were taken from the truck or trailer? A. Yes, sir; there were.

'Q. What was done with those flares that were taken from the truck or trailer?

'Mr. Reynolds: I move to strike that out as incompetent and immaterial.

'Mr. Oldham: It seems to me that is competent.

'The Court: I think it is.

'Q. It happened how soon after the accident? A. I should judge about ten minutes after the accident Before there was a flare stuck out on the highway.'

During the examination of another witness for wheeler and wife, one of the state highway officers who arrived upon the scene some fifteen or twenty minutes after the occurrence of the accident, the following occurred:

'Mr. Oldham: Q. What was done after your arrival? A. The driver, I think it was the driver of the truck that was struck, had some fuses there, and I had some fuses, and he went down and lit his fuses.

'Mr. Reynolds: I object to that as being incompetent, immaterial and irrelevant. There is no law requiring any fuses, and this was after the accident happened twenty minutes, and what they did at that time was immaterial and irrelevant.

'Mr. Oldham: It shows what he had and what was available for him to put out.

'Mr. Reynolds: Now, after counsel has stated the reason for it I move to strike it out on the ground stated, and under the state law there is no requirement for any fuses or anything else than the lights specified in the statute which were on the truck.

'The Court: Objection overruled; exception allowed.'

In so far as this testimony tended to show that the truck driver had flares or fuses available, which he could have timely put out on the pavement prior to the accident to warn traffic approaching from the north and failed to timely so use the flares, it seems plain to us that this testimony was admissible. In Erickson v. McNeeley & Co., 41 Wash. 509, 84 P. 3, 5, there was involved the admissibility of evidence of a guard being put upon a saw to protect its operator, after one of its operators had been injured, as was claimed, by the absence of a guard. Judge Mount, speaking for the court and holding that such evidence was admissible for the purpose of showing the practicability of so guarding the saw, said: 'The question whether or not the saw could have been advantageously guarded was one of the contested and important facts in the case. During the trial, the court permitted evidence of the fact that the same saw was afterwards guarded in the way some of the witnesses testified it could have been guarded. This evidence was admitted over the objection of the appellant's counsel, and is now alleged as error. The court, in admitting the evidence, stated that it would be allowed only for the purpose of determining the question whether the saw could have been advantageously guarded at the time of the injury, and the jury were then and subsequently instructed to that effect. The general rule is that the taking of precautions against the future is not to be construed as an admission of responsibilities in the past, and evidence of what has been done since an accident occurred is not admissible. Bell v. Washington Cedar Shingle Co., 8 Wash. 27, 35 P. 405. * * * But the avowed purpose here was to show that the saw could have been advantageously guarded, and the jury were instructed to consider it only for that purpose. The fact that it was afterwards guarded by placing a board to the side of it, or placing a hood over it, which guards did not interfere with the practical operation of the saw, was conclusive evidence that it could have been advantageously guarded prior to the time of the injury.'

In Thomson v. Issaquah Shingle Co., 43 Wash. 253, 86 P. 588, 589, this view of the law was adhered to; Judge Crow, speaking for the court, saying: 'One witness offered by respondent was permitted, over appellant's objections, to testify as to certain changes made on the knot saw table immediately after the accident. This evidence tended to show that the left-hand saw could be advantageously guarded by other methods than the use of a splint chute, and was admissible for that purpose. Erickson v. McNeeley & Co., 41 Wash. 509, 84 P. 3.'

In Fonder v. General Construction Co., 146 Wis. 1, ...