Wines v. Engineers Limited Pipeline Co.

• Decision Date: 26 December 1957
• Docket Number: 34317,Nos. 34316,s. 34316
• Court: Washington Supreme Court
• Parties: Coral WINES, Respondent, v. ENGINEERS LIMITED PIPELINE COMPANY, Appellant. Henry V. LITTLE, Respondent, v. ENGINEERS LIMITED PIPELINE COMPANY, Appellant.

Page 487

51 Wn.2d 487

319 P.2d 563

Coral WINES, Respondent, v. ENGINEERS LIMITED PIPELINE COMPANY, Appellant.

Henry V. LITTLE, Respondent, v. ENGINEERS LIMITED PIPELINE COMPANY, Appellant.

Nos. 34316, 34317.

Supreme Court of Washington, Department 2.

Dec. 26, 1957.

Rehearing Denied Feb. 10, 1958.

Hullin & Ehrlichman, Seattle, for appellant.

Pemberton & Orloff, Bellingham, Brown & Millhouse, Bellingham, for respondent.

DONWORTH, Justice.

This appeal involves two independent suits, arising out of a single automobile collision, consolidated for the purposes of trial and appeal. These actions were tried before the court sitting with a jury and resulted in verdicts and judgments in favor of each respondent.

Respondent Wines, the daughter of respondent Little, for several months prior to June 9, 1955, had been residing with her father at his home, located northeast of Bellingham. The home was located near the intersection of Kelly (east-west) and Hannegan (north-south) roads.

Shortly before 8:00 o'clock p. m., on the date above mentioned, respondents left the Little home, intending to proceed east on Kelly road to a home less than one mile distant, where respondent Little, as member and paid construction superintendent, was to attend a meeting of a neighborhood water association. Respondent Wines was operating her Hudson automobile, with respondent Little riding beside her.

Kelly road had a dry graveled surface. Hence, it had no center stripe. About one thousand feet east of the Hannegan intersection, appellant had trenched, laid its north-south pipe line across Kelly road, and backfilled a ditch. At the pipe-line crossing, and farther eastward, Kelly road slopes, rising gradually to the east. It crests about one hundred feet east of the crossing. The maximum lawful speed on Kelly road was stipulated to be sixty miles per hour.

After entering upon Kelly road, respondent Wines proceeded eastward from the Hannegan road, following a Dodge pickup. She, in turn, was followed by another automobile. Mrs. Wines' view of the roadbed ahead was completely obscured by the dust created by the preceding pickup, but she was able to see the back of the pickup (above the cargo box) and followed at a distance of about thirty to thirty-five feet.

Defendant Walter Rhode (who is not concerned with this appeal) was proceeding westbound on Kelly road in his Chevrolet coupe at about forty miles per hour. Somewhere east of the pipe-line crossing, he met and passed the oncoming pickup. He then entered the dust generated by the pickup and applied his brakes. He did not see the Wines' car until too late to avoid a collision, which occurred somewhere near the pipe-line crossing.

Respondents Wines and Little each sustained severe personal injuries, for which they commenced their respective actions for damages. In addition, respondent Wines sought damages for loss of earnings and the depreciation in value of her automobile.

Respondents' respective causes of action were based upon the grounds of defendant Rhode's negligent operation of his automobile and appellant's failure to give adequate warning of the hazardous condition created by its obstruction of the roadway. Appellant denied negligence, and affirmatively alleged contributory negligence of each respondent, alleging, in particular, that Mrs. Wines was an agent of her father's and that her contributory negligence is imputable to him.

As is not uncommon in suits of this nature, the testimony of the witnesses was in sharp conflict on many factual issues of vital importance. But, since these appeals are from judgments entered upon verdicts of a jury, we are required to view the evidence most favorable to the successful parties, and all such material evidence must be accepted as true. The verdicts must stand unless we can say, as a matter of law, that there is neither evidence nor reasonable inference therefrom to sustain them. DeYoung v. Campbell, Wash.1957, 315 P.2d 629.

Having this rule in mind, the jury was entitled to believe that the following facts were established by the evidence:

In the vicinity of the pipe-line crossing, Kelly road was rough and rutty, with a pile of dirt of appellant's creation extending into the north (or westbound) lane of travel; that the north lane was obstructed by a barricade extending thereon to such an extent that traffic at the pipe-line crossing as reduced to but one lane of travel, that being the south (or eastbound) lane; that the point of impact was in the eastbound lane of travel, slightly over an automobile's length east of the pipe-line crossing; that Mrs. Wines' view, although somewhat impaired, was not wholy obscured; that her speed of twenty to twenty-five miles per hour under the circumstances then and there existing was not excessive; that she was proceeding cautiously, and had no reason to anticipate that defendant Rhode, or any other westbound motorist, after meeting the pickup truck preceding her, would, in an attempt to avoid the obstruction of appellant's creation, veer his automobile into the eastbound lane of travel.

Appellant first assigns error to the trial court's refusal to give to the jury its requested instruction, which reads, in part:

'* * * 'You are instructed that under Washington statute the maximum speed is not always permissible under any and all circumstances, but every person operating or driving a vehicle upon the public highways of this State shall operate the same in a careful and prudent manner, and at a rate of speed no greater than is reasonable or proper under the conditions existing at the point of operation, so as not to unduly or unreasonably endanger the life, limb, property, or other rights of any persons entitled to the use of such public highways.

"In this connection, the law holds one negligent who fails to stop when his visibility is completely obscured by a cloud of dust.

"If you find from a fair preponderance of the evidence that, because of the condition which existed at the time of this accident, impairing or obscuring visibility, either driver failed to exercise ordinary care, either by failing to stop or failing to travel at a safe speed, then such driver is negligent."

In support of this contention, appellant argues that its theory of contributory negligence should have been submitted to the jury. Respondents contend that the proposed instruction was inapplicable, because there was no evidence that the vision of respondent Wines was completely obscured.

The extent to which respondent Wines' vision was impaired or obscured by dust was a question of fact for the jury to determine from conflicting testimony. Whether she did, or did not, exercise reasonable care commensurate with the degree of impaired visibility caused by the dust (as determined by the jury) was also a question of fact to be decided by them.

The jury was, by instruction No. 8, advised generally of the nature and effect of contributory negligence. The court further instructed the jury, by instruction No. 15, that:

'* * * it is the duty of every person operating or driving a vehicle of any character upon the public highways of the State of Washington to operate the same in a careful and prudent manner and at a rate of speed no greater than is reasonable and proper under the conditions existing at the point of operation, taking into account the amount and character of the traffic, weight of vehicle, grade and width of highway, condition of surface, and freedom of obstruction to view ahead, and consistent with any and all conditions existing at the point of operation so as not to unduly or unreasonably endanger the life, limb, property or other rights of any person entitled to the use of such public highway, and compliance with the maximum speed limits shall not relieve the operator of any vehicle from further exercise of due care and caution as further circumstances shall require.'

Thus, the jury was instructed generally upon the degree of care required, as proposed in the first paragraph of the instruction requested by appellant, and, specifically, upon certain factors (italicized above) to be taken into consideration in determining whether either driver exercised the required degree of care. Since the requested instruction is merely a specific elaboration of what the court told the jury in more general terms, we cannot say that the refusal to give it constitutes prejudicial error. Smith v. Harrington, 1916, 93 Wash. 681, 161 P. 465.

Appellant next contends that the trial court erred in failing to instruct the jury that respondent Wines was chargeable with contributory negligence, as a matter of law, proximately contributing to the accident. It is argued that, since Mrs. Wines had actual prior notice of the obstructed north half of the roadway, coupled with the impenetrable nature of the dust near the scene of the accident, she was contributorily negligent in failing to stop or slow materially before the point of impact.

In considering this question, certain basic principles must be borne in mind. First, generally speaking, there is no more justification for the court to hold a plaintiff guilty of contributory negligence as a matter of law than there is to hold a defendant guilty of negligence as a matter of law. Farrow v. Ostrom, 1941, 10 Wash.2d 666, 117 P.2d 963. Second, when contributory negligence is urged as a matter of law, the question is to be determined in the light of the evidence most favorable to plaintiff. Cunningham v. Dills, 1944, 19 Wash.2d 845, 145 P.2d 273. Third, only in rare instances is the court warranted in withdrawing the issue of contributory negligence from the jury. Berndt v. Pacific Transport Co., 1951, 38 Wash.2d 760, 231 P.2d 643, and authorities cited therein. Fourth, the questions of contributory negligence and primary negligence are so interrelated that the former usually cannot be determined without reference to the latter. It is for this reason this court has...