Wilson v. Stone

• Decision Date: 17 August 1967
• Docket Number: No. 38780,38780
• Citation: 71 Wn.2d 799,431 P.2d 209
• Parties: Rex WILSON and Virginia Wilson, husband and wife, Appellants, v. Lynn STONE and Mrs. Lynn Stone, husband and wife, Respondents.
• Court: Washington Supreme Court

Page 799

71 Wn.2d 799

431 P.2d 209

Rex WILSON and Virginia Wilson, husband and wife, Appellants, v. Lynn STONE and Mrs. Lynn Stone, husband and wife, Respondents.

No. 38780.

Supreme Court of Washington, En Banc.

Aug. 17, 1967.

As Modified on Denial of Rehearing Oct. 19, 1967.

Robinson, Landerholm, Memovich Lansverk, Whitesides & Marsh, Vancouver, for appellants.

Ned Hall, Vancouver, for respondents.

NEILL, Judge.

But for the fact that plaintiff Virginia Wilson was a guest in an automobile operated by a disfavored driver, we would herein be confronted with another of the troublesome intersection collision cases involving a favored driver and a disfavored driver at an arterial intersection. Reamer v. Walter H. C. Griffiths, Inc., 158 Wash. 665, 291 P. 714 (1930); Bos v. Dufault, 42 Wash.2d 641, 257 P.2d 775 (1953). However, for convenience, we will use the term 'favored driver' to apply to the defendant Lynn Stone, even though the plaintiff is not a 'disfavored driver,' for the reason that we believe that defendant's standard of care should be viewed and tested in light of his right to assume that persons entering an arterial highway will yield to his statutory right of way.

To facilitate unobstructed movement of vehicular traffic on arterial highways, the legislature, by RCW 46.60.170, in effect on the date of this accident, provided (1) that a disfavored driver must stop at the entrance to any intersection with an arterial highway; (2) that the disfavored driver shall look out for and give right of way to the driver of vehicles traveling upon the arterial highway; and (3) that the disfavored driver must yield the right of way to the drivers of vehicles upon the arterial highway simultaneously approaching the intersection whether or not the disfavored driver first reaches and enters the intersection. The legislature, further, by RCW 46.60.330 (now RCW 46.61.195) authorized the Washington State Highway Commission to designate which roads will be arterial highways for the purpose of facilitating the movement of vehicular traffic through populated areas.

On December 1, 1963, Lynn Stone, accompanied by his wife and daughter, was driving his Pontiac automobile on Columbia Street, an arterial highway, in the city of Vancouver. As Mr. Stone approached the intersection of the arterial highway with 27th Street, his automobile collided with an automobile being driven by Mrs. Katherine Davenport, who had failed to stop and yield the right of way to the Stone vehicle at the intersection. Mrs. Davenport's automobile was struck on the left side by the Stone vehicle. Mrs. Virginia Wilson was riding in the front seat of the Davenport automobile and four of Mrs. Wilson's children were riding in the back seat.

At impact, the Stone vehicle stopped immediately. The one being driven by Mrs. Davenport proceeded forward across the highway and spun around, throwing Mrs. Wilson onto the pavement, injuring her.

Mrs. Wilson and her husband commenced this action against Lynn Stone and his wife alleging three acts of negligence on the part of the favored driver: (1) failing to keep his vehicle under proper control; (2) failing to keep a proper outlook for the vehicle in which Mrs. Wilson was riding; and (3) traveling at a speed greater than authorized and greater than reasonable under existing conditions. The jury returned a verdict for the plaintiffs. The defendants moved for a judgment notwithstanding the verdict, contending that the favored driver was not shown to have been negligent. The court, in an extensive memorandum opinion, analyzed the evidence and concluded: 'The court is of the opinion that the plaintiff has not proven any negligence on the part of the defendant by substantial evidence.' From a judgment of dismissal of plaintiffs' cause of action, they appeal.

Appellants' assignments of error present a single issue, namely, did appellants' evidence meet the burden of proof required to establish actionable negligence on the part of the favored driver?

In resolving this issue we are bound by the following rules: (1) The court, in granting a judgment notwithstanding the verdict, must consider the evidence and all inferences therefrom most favorable to the nonmoving party. Ewer v. Johnson, 44 Wash.2d 746, 270 P.2d 813 (1954). (2) Negligence is never presumed and one who asserts it has the burden of proving it by substantial evidence. Charlton v. Baker, 61 Wash.2d 369, 378 P.2d 432 (1963). (3) A scintilla of evidence does not meet the requirements of the substantial evidence rule. Poland v. City of Seattle, 200 Wash. 208, 93 P.2d 379 (1939). (4) In determining whether the evidence is a scintilla only, the court cannot weigh the evidence. Lambert v. Smith, 54 Wash.2d 348, 340 P.2d 774 (1959). (5) The testimony of a witness whose determination of speed is predicated upon a fleeting glance of the oncoming vehicle constitutes only a scintilla of evidence. Sanders v. Crimmins, 63 Wash.2d 702, 388 P.2d 913 (1964).

Applying these tests to the first two allegations of negligence stated above, the record shows that neither the appellant Mrs. Wilson nor her disfavored driver saw the Stone vehicle until the moment of impact. The only evidence relating to Mr. Stone's having exercised proper outlook and proper control was given by the respondents. Mr. Stone, the driver of the favored vehicle, stated that he saw the disfavored automobile approaching on 27th Street at what he considered to be a legal rate of speed; that as he observed the vehicle approaching he thought it would stop at the arterial highway intersection; that when he observed that the disfavored vehicle was not going to yield the right of way, he immediately applied the brakes and at the time of impact was traveling so slowly that his automobile did not move after impact.

There was some evidence that Mrs. Stone saw the approaching vehicle approximately 40 feet away traveling at an excessive rate of speed and that she thought the disfavored vehicle would not stop and yield the right of way. There is no evidence that she conveyed her impression to the driver of the favored automobile. A favored...