The primary issue involved in this appeal is whether the driver of plaintiffs' automobile (the disfavored vehicle) was contributorially negligent in failing to yield the right of way at an arterial intersection. The trial court deemed the issue to be one of fact and submitted the question to the jury. From an adverse verdict defendants appeal, contending contributory negligence was established as a matter of law.
The automobile accident giving rise to this action occurred at about 3:30 p.m. on a clear, dry, December day, at the intersection of Proctor and North 13th Streets, in Tacoma, Washington.
Defendants' vehicle, a "red, shiny" 1955 Chevrolet, entered Proctor Street at North 26th Street, and was traveling south at a speed estimated to be from 40 to "at least" 60 miles an hour. Plaintiffs' vehicle, a 1951 Mercury, equipped with an automatic gear shift, was traveling east on North 13th Street, the driver intending to turn north on Proctor.
Upon arrival at the intersection, plaintiff driver stopped his vehicle abreast of the sidewalk in obedience to and 5 feet east of the posted stop sign. Both he and his wife then looked for approaching traffic on Proctor. Their view of Proctor Street, for four or five blocks both north and south, was clear and unobstructed. Both testified they saw no vehicle within three blocks north of the intersection, a distance of at least 900 feet. Plaintiffs' vehicle then entered the intersection, accelerated to between 10 and 15 miles an hour, traveled approximately 20 feet, commenced turning to the north, and was struck by defendants' southbound vehicle.
Defendant driver testified he first observed plaintiffs' vehicle entering the intersection when he was 100 to 150 feet distant, whereupon he applied his brakes and swerved to the left in a futile attempt to avoid collision. Other witnesses observed defendants' vehicle within three blocks of the intersection just prior to the collision. Defendants' vehicle laid down 105 feet of skid marks before impact.
Impact occurred within the northeast quadrant of the intersection. Major damage was inflicted upon the front of plaintiffs' vehicle and the right side of defendants' vehicle. Both vehicles were practically demolished.
The trial court did not instruct upon the doctrine of deception, and plaintiffs do not here argue or claim they were deceived by the excessive speed of defendants' vehicle or by a clear stretch of highway, within the contemplation of rule 4 of Hadenfeldt. Instead, it is plaintiffs' argument that, at the time and place plaintiff driver looked to the north, defendants' vehicle was either not in sight or was, at best, three to four blocks away (900 to 1200 feet), albeit approaching rapidly, ergo, a question of fact was presented as to whether plaintiffs had a reasonable margin of safety within the contemplation of rule 2 of Hadenfeldt.
Upon the issue as so framed by the parties, and bearing in mind that plaintiff driver's view to the north on Proctor was clear and unobstructed, we are constrained to agree with defendants.
We are satisfied, upon the issue and facts as presented, the following language from Wilkinson v. Martin, 56 Wn.2d 921, 925, 349 P.2d 608, is dispositive of this appeal:
"... It appears that respondent had an unobstructed view to his left, ... of approximately one fourth of a
Since plaintiffs do not claim to come within rule 4 of Hadenfeldt, plaintiff driver must be held contributorially negligent as a matter of law, and the trial court erred in submitting such issue to the jury.
The judgment is reversed with directions to dismiss the action.
OTT, C.J., DONWORTH, FINLEY, and WEAVER, JJ., concur.
February 5, 1964. Petition for rehearing denied.
The Hadenfeldt rules, with appropriate interpolations are:
"(1) All rights of way are relative, and the duty to avoid accidents or collisions at street intersections rests upon both drivers.
"(2) The primary duty of avoiding such accidents rests upon the [disfavored] driver ..., which duty he must perform with reasonable regard to the maintenance of a fair margin of safety at all times.
"(3) If two cars collide within the intersection, then they were simultaneously approaching a given point within the intersection, within the meaning of the statute, unless —
"(4) The [disfavored] driver ... assumes and meets the burden of producing evidence which will carry to the jury the question of fact as to whether or no the favored driver on the right so wrongfully, negligently, or unlawfully operated his car as would deceive a reasonably prudent [disfavored] driver ... and warrant him in going forward upon the assumption that he had the right to proceed." Martin v. Hadenfeldt, 157 Wn. 563, 567, 289 Pac. 533.