Respondent brought this action to recover damages for personal injuries sustained as a result of an automobile accident. The trial court instructed the jury that respondent was guilty of contributory negligence as a matter of law, but submitted the case for their determination under both phases of the "last clear chance" doctrine. The jury returned a verdict adverse to appellant, and after the court's denial of his motion for judgment n.o.v. or, in the alternative, for a new trial, he has appealed from the judgment entered on the verdict.
The testimony of the principal witnesses regarding the accident may be summarized briefly as follows:
At about one o'clock a.m., on August 12, 1955, respondent's Hudson automobile, driven by his brother-in-law, Herriman, stalled in the westbound lane of state primary highway No. 2H, which extends eastward from Spokane to the Washington-Idaho state line. Herriman coasted to a stop on the pavement, making no attempt to drive onto the graveled north shoulder of the road (which was about four feet in width). The parking lights were set, but the left rear taillight was not functioning.
Herriman stood in front of the stalled automobile and, as other cars approached from the east, he would step out and extend his arm, signaling his solicitation of assistance. As approaching cars would pass, he would step back to his sheltered position in front of respondent's automobile.
Respondent testified that he remained in his car for several minutes after it stopped and then got out of the right front door of the car. His left ankle had been fractured in an industrial accident several weeks before and was mending within a plaster of Paris walking cast, which extended nearly to his knee. He testified that, after stepping out of
Appellant's testimony revealed that while he was driving his car as it was approaching respondent's car from the rear, he first saw respondent's automobile at a distance of about 200 yards, at which time he thought it was in motion; that at a distance somewhat in excess of 75 to 100 yards he noticed that it was stopped; and that, when approximately 25 to 30 yards away, he swerved out into the left (south) lane to pass it.
At the time his car started to pass, he noticed "somebody dressed in light colored clothes, standing about the rear door of the Hudson." He testified that the man he saw "had his arm extended in about a half way out position, with his thumb out there and it looked like his thumb was out in a hitchhiking manner." At the trial, appellant identified the man he saw as Herriman, denying emphatically that he saw respondent at all before the accident. He stated that he had not seen a crutch or crutches, but respondent testified that the one crutch he was using was under his right arm, away from appellant's approaching automobile. Herriman testified that he had been in front of the stalled automobile as appellant's car approached, and had not been near the rear door at all; that respondent was standing about "a foot or a foot and a half" away from the left rear fender of his own
Appellant testified that the cars were "adjacent to each other when I first felt the thud against my automobile and thought at that time I had probably hit someone, or something." Respondent's injured body came to rest near the center of the highway, a short distance in front, and to the left, of his stationary car.
An examination of appellant's Studebaker sedan by a state patrolman indicated that it had made initial contact with respondent on or near an air vent hinged at the back and protruding out from the side of the car. This vent was located behind the right front wheel well and immediately in front of the right front door. That door was scratched and depressed, and the right end of the rear bumper was damaged, with particles of plaster of Paris hanging from it. Respondent's Hudson had a dent in its left rear fender which, respondent testified, had not been on the car before the collision.
Photographs of the scene (taken shortly after respondent had been removed to the hospital) show a white substance on the highway near the left rear wheel of respondent's automobile. The state patrolman (who had been following appellant's vehicle for several miles, but did not see the impact) investigated the accident. He could not identify the substance, but stated, "It could be plaster of Paris."
The highway approaching the scene of the accident from the east was straight for several miles, with slight dips which would not obstruct a traveler's view. Measurements taken by the patrolman revealed that the paved roadbed was twenty feet in width; that the distance from the center hub of the left rear wheel of respondent's car to the center line of the highway was four feet eight inches; and that the distance from the north edge of the center line to the south edge of the eastbound lane of travel was nine feet ten inches. Appellant testified that the south shoulder of the road was about six to seven feet wide.
The evidence was conflicting upon the crucial issue of respondent's precise position at the moment of the initial impact.
Appellant assigns as error the giving of certain instructions by the trial court in its charge to the jury.
Assignment of error No. 5 is directed to instruction No. 4, by which the jury was told:
"`No person driving a vehicle upon a public highway outside of cities and towns and overtaking another vehicle proceeding in the same direction shall overtake such vehicle or drive within a distance of less than fifty feet of such overtaken vehicle for such purpose without first signaling his intention to pass by use of horn or other sounding device.'" (Italics ours.)
Appellant asserts that this instruction, given in the language of RCW 46.60.040 [cf. Laws of 1937, chapter 189, § 77, p. 892], constitutes reversible error, because there is no evidence that the respondent was "proceeding rather than parked" and "the jury was entitled to find negligence of appellant on issues entirely unsupported by evidence." If the trial court had not, in instruction No. 7, distinctly limited the vital issues to the two phases of the last clear chance doctrine, this contention might be upheld.
We are unable to agree with appellant that the case of Leavitt v. De Young, 43 Wn.2d 701, 707, 263 P.2d 592 (1953), is determinative of his contention that the claimed error in instruction No. 4 was prejudicial, and therefore reversible error. In that case, the contributory negligence of the plaintiff was a vital issue, which was submitted to the jury under an erroneous abstract instruction. In the present case, the jury was instructed that the plaintiff could not recover damages based upon the primary negligence of defendant, and that its determination of the case would "turn exclusively upon the question of last clear chance." In Neeley v. Bock, 184 Wn. 135, 143, 50 P.2d 524 (1935),
"`This case is to be distinguished from such cases as Gabrielsen v. Seattle, 150 Wn. 157, 272 Pac. 723, 63 A.L.R. 200, and Tenneson v. Kadiak Fisheries Co., ante p. 380, 2 P.2d 745, involving the giving of abstract instructions, correct in principle, where no issue upon the subject was presented.'"
The cases cited in the above quotation are discussed in Stokes v. Magnolia Milling Co., supra.
Appellant, by his sixth assignment of error, contends that the trial court erred in giving instruction No. 5, by which the jury was advised:
"`Every motor vehicle shall be equipped with a suitable horn, which shall be sounded at any time when such vehicle is approaching a condition of danger or where in the exercise of due care warning should be made.'"
"There is no evidence that appellant's car was being operated at a speed that could be considered excessive or unreasonable under the favorable conditions existing."
From appellant's own testimony, the jury (in considering the application of the last clear chance doctrine) could have found that appellant's speed of forty to forty-five miles per hour while passing within a distance of not to exceed four and one half feet of respondent's stalled automobile, after he had observed some person (whether it was respondent or Herriman) standing near the rear door of the car, constituted a failure to do all that he reasonably could to avoid the collision.
"Going no farther back into the decisions than to Mosso v. Stanton Co., 75 Wn. 220, 134 Pac. 941, L.R.A. 1916A 943, we find that case endeavored to clarify the last clear chance rule and define two separate conditions under which it was applicable, and the rule is announced as (1) that where the defendant actually saw the peril of a traveler on the highway and should have appreciated the danger and failed to exercise reasonable care to avoid injury, such failure made the defendant liable, although the plaintiff's negligence may
The second — or "should have seen" — phase of the rule has two possible applications: (a) where the plaintiff's negligence has terminated; or (b) where the plaintiff's negligence has culminated (i.e., reached its highest point or reached a climax) in a situation of peril from which plaintiff could not, by the exercise of reasonable care, extricate himself. Under the second phase, the plaintiff's negligence need not have terminated, but may have continued until the moment of injury, provided he was in a position of peril from which he could not, by the exercise of reasonable care, have extricated himself.
In Everest v. Riecken, 30 Wn.2d 683, 193 P.2d 353 (1948), this court expressly recognized the two distinct subdivisions, or branches, of the second phase of the rule, but concluded that the trial court did not err in refusing to give requested instructions on either, or both, because
"The negligence of the appellant had not terminated; and, if it had culminated in a position of peril from which the appellant could not extricate himself, it does not appear that the respondent saw or, in the exercise of due care, should have seen the appellant in a position of inextricable peril in time to have, by the exercise of reasonable care, avoided injuring him."
In the present case, appellant relies strongly upon the Thompson case, supra, in support of his contention that the last clear chance rule (in either of its phases) is inapplicable to the factual situation before us. In that case, the plaintiff was guilty of contributory negligence in walking "on the right-hand side of the roadway in disobedience of" a statute. Plaintiff's contributory negligence continued until the moment of injury. We said:
"Certainly, in this case Thompson's negligence had not terminated, and it would seem equally certain that it had not culminated in a situation of peril from which he could not extricate himself. He could have stepped off the pavement at any instant. In fact, we have heretofore squarely so decided."
In that case, we went on to discuss and expressly reject the plaintiff's contention that "one who is oblivious to his danger is, in effect, as unable to extricate himself as one who is physically unable to do so." A reading of that case discloses that the plaintiff, whose negligence continued until the moment of impact, had an opportunity equal to that of the defendant to avoid the accident. In that respect, we fail to find in the Thompson case, supra, a factual similarity which would be controlling in the case at bar, because here respondent was separated from the shoulder of the highway by his stalled car and, also, he was physically handicapped.
In Chapin v. Stickel, 173 Wn. 174, 22 P.2d 290 (1933), this court affirmed a judgment based upon the verdict of a jury in favor of the plaintiff. In that case, the plaintiff, at the moment of impact, was standing on a highway between his stalled truck and a tow truck, and consequently could not be seen by drivers of approaching vehicles. The tail and headlights of plaintiff's truck were burning (the accident occurred about nine o'clock p.m.). Without an interfering obstruction, the defendant could see an object at least one hundred fifty feet ahead of him on the road as he approached the rear of plaintiff's truck. Defendant testified that he was twenty or thirty feet distant from plaintiff's truck when he first noticed it. He was unable to stop his vehicle in time to avoid colliding with the rear end of plaintiff's truck, forcing it forward against the plaintiff.
The trial court in the Chapin case, supra, as in the present case, instructed the jury on both the first phase and the second branch of the second phase of the last clear chance rule. But we there said:
"Clearly, the respondent [plaintiff] was not guilty of negligence which continued up to the time of the accident. Therefore, appellants [defendants] have no just cause for objection to the second phase of the instruction."
The trial court, in the present case, gave no instruction whatever concerning the first branch of the second phase of the doctrine, i.e., relating to the termination of plaintiff's (respondent's) negligence. But under the court's instruction
In this connection, since the point of initial impact was a matter of dispute, it was for the jury to determine, from the conflicting testimony and the physical evidence (such as the white substance on the pavement near the left rear wheel of respondent's car and the angle of appellant's car in relation to respondent's vehicle at the moment of the collision), respondent's precise position on the highway when he was hit, and to decide the ultimate issue of whether appellant had the last clear chance to avoid the accident.
By instruction No. 7, the jury was told:
"You are instructed that the court has held as a matter of law that the plaintiff Patterson was guilty of negligence under the evidence in this case, and that there can be no recovery of damages based upon the primary negligence of the defendant. You are therefore instructed that there can be no recovery by the plaintiff in this case based upon the allegations of primary negligence and you can consider the allegations of primary negligence only insofar as they may relate to the application of the last clear chance doctrine, as you will be hereinafter instructed on the legal principles of the last clear chance doctrine. You are therefore instructed that your determination of this case will turn exclusively upon the question of `last clear chance.'" (Italics ours.)
It seems abundantly clear to us that, if instruction No. 5 (discussed above and held to be erroneous), when considered alone, could be said to have confused or misled the
Appellant next contends that, assuming that the doctrine of last clear chance was applicable to the facts of this case, nevertheless the sentence from instruction No. 8 (quoted below) caused the whole of that instruction to be prejudicially erroneous. That sentence, referring to the doctrine of last clear chance, reads, in part:
"It is a rule of law which covers a plaintiff who has negligently placed himself in a situation of imminent peril and is either unconscious of the situation or unable to avoid the danger, or both." (Italics ours.)
The judgment is affirmed.
ROSELLINI and MALLERY, JJ., concur.
HILL, C.J., concurs in the result.
January 3, 1958. Petition for rehearing denied.