The defendants say this is a "following car" case; the plaintiffs say that it is a "changing lanes and cutting in" case and that they became a "following car" solely because the defendant-driver changed lanes and cut in front of them so sharply that they had no opportunity to stop before colliding with defendants' car. The jury found against plaintiffs on their complaint and against the defendants on their cross complaint; in short, for the defendants without damages. From the judgment of dismissal, the plaintiffs appeal.
Their theory of the case was presented to the jury in the following instruction:
The defendants' theory of the case was presented to the jury in the following instruction:
"Where two cars are traveling in the same direction, the primary duty of avoiding a collision rests with the following driver. In the absence of an emergency or unusual conditions he is negligent if he runs into the car ahead. The following driver is not necessarily excused even in the event of an emergency, for it is his duty to keep such distance from the car ahead and maintain such observation of that car that an emergency stop may be safely made." Instruction No. 13.
This instruction has been approved
From the oral argument we gather that the plaintiffs' sole contention on this appeal is that the last sentence of instruction No. 13 should be omitted or modified where the leading car has cut in sharply and has placed a party "unwittingly in a following car position." In such a situation, a sudden stop by the leading car places the driver of the following car "in a position of sudden peril through no fault of his own." Grapp v. Peterson (1946), 25 Wn.2d 44, 48, 168 P.2d 400.
Had the plaintiffs made their position on the challenged instruction as clear to the trial court as they have to this court, we have no doubt that a cautionary statement would have been added to the instruction distinguishing the "cutting in" situation, if the jury found that it had been established, from the usual "following car" situation.
"We'll take exception to the Court's giving Instruction Number 13, on the grounds that there is no testimony to support, or warrant, the giving of this instruction, since the evidence shows that the proximate cause of this collision was not the following car striking the other car, but the evidence was the one car changing lanes immediately into the path of the other car, and I don't think there is evidence to support, or warrant, the giving of that instruction."
Our conclusion, from this exception, would be that counsel was objecting to the entire instruction on the ground that there was no evidence to support it. This did not direct the trial court's attention to the point which is being urged on this appeal.
Under the testimony of the defendant-driver
The plaintiffs' brief concedes that the first two sentences of instruction No. 13 are not objectionable, but they urge that the last sentence should not have been given.
There was, as we have indicated, no request that a particular part of the instruction be not given; nor was there a request for what the plaintiffs regarded to be a proper instruction under the circumstances.
One of the cases cited and quoted in the Goodner case is Lamping v. Ripley (1934), 178 Wn. 206, 34 P.2d 459, in which error was assigned to the giving of an instruction relating to acts in emergencies because it did not cover the exception to the rule which applies where the emergency is created by the negligence of the acting party (which is certainly comparable to the situation now before us). We said:
"Concededly, the instruction, as given, correctly states the general rule, and contains no erroneous matter. Its sole fault (if that be a fault) is that it did not go further, and set forth an exception or qualification thought to be applicable in this particular case. The subject was clearly
See also Brammer v. Lappenbusch (1934), 176 Wn. 625, 30 P.2d 947, and Anselmo v. Morsing (1931), 166 Wn. 111, 6 P.2d 377, 9 P.2d 100.
There being no adequate exception to the instruction given, and now claimed to be erroneous, and there being no proposed instruction to correct the claimed inadequacies in the instruction given, the judgment appealed from is affirmed.
OTT, C.J., ROSELLINI, HUNTER, and HAMILTON, JJ., concur.
Whether he stopped or merely slowed to let a south-bound car pass, there is evidence of the type of emergency that must be anticipated by the driver of the following car in such a situation and which is covered by the instruction as given.