Nichols v. Spokane Sand & Gravel Co. , 64 Wash. 2d 219 ( 1964 )

Hamilton, J.

On the clear, dry morning of August 23, 1957, defendant’s dump truck followed by a pickup truck driven by one Emmet S. Brown, plaintiff’s automobile, and a third vehicle driven by one Edward LeDuc were proceeding easterly, in the order named, on Trent Avenue, a two-lane black-top street, in the vicinity of Spokane, Washington. As the vehicles approached Lockwood Street, which dead-ends into Trent Avenue from the north, defendant’s truck slowed down to about 10 or 15 miles an hour preparatory to turning left onto Lockwood Street. When the truck commenced its turn, a collision occurred with plaintiff’s automobile, which was then in the left-hand lane of travel attempting to pass.

Feeling aggrieved, plaintiff initiated this suit. He alleged, in substance, that defendant’s truck driver was negligent in failing to signal his intention to turn or to seasonably observe plaintiff’s passing vehicle. Defendant responded, denying negligence on the part of its driver and alleging, in essence, that plaintiff was negligent or contributorially negligent in failing to signal his intention to pass or to observe the truck driver’s turn signals. Trial of the action resulted in a jury verdict favorable to plaintiff. Defendant appeals.

The evidence is conflicting as to when and where plaintiff entered the left-hand or west-bound lane of Trent Avenue preparatory to passing the Brown pickup and defendant’s truck. Plaintiff testified he entered the westbound lane 200 to 250 feet from the intersection and remained therein until impact. Defendant’s truck driver testified he looked in his rear-view mirror 300 to 450 feet from the intersection, again at 100 feet, and again just before commencing his turn and saw no vehicle in the west-bound lane. He stated he first saw plaintiff’s vehicle in the west-bound lane at the moment of turning and impact. Driver Brown testified plaintiff: “swung out there kind of fast.” Driver LeDuc estimated plaintiff started his pass about 50 yards from the intersection.

Likewise, the evidence is in dispute as to whether plaintiff sounded his horn and as to whether the left-turn signal lamps of the defendant’s truck were on. Plaintiff testified that he sounded his horn at least once as he commenced to pass the Brown pickup, which he stated was then 30 feet behind the dump truck, and that although he looked the dump-truck turn signals were not on. Driver Brown and the dump-truck operator testified they heard no horn signal from plaintiff’s vehicle, and that the dump truck’s left-turn signals had been turned on a block to two blocks from the intersection and continued to flash up to the time of the accident.

The basic issues of primary and contributory negligence thus framed were (a) whether defendant’s truck driver was negligent in failing to signal his intention to turn or in failing to seasonably observe and avoid plaintiff’s passing vehicle, and (b) whether plaintiff was negligent in failing to sound his horn or in failing to observe the truck’s turn signals. The trial court submitted these issues to the jury. In addition, the trial court instructed the jury upon the doctrine of last clear chance as follows:

“If you find the plaintiff was guilty of negligence which continued up to the time of the accident, but that the defendant actually then saw the plaintiff in a position of peril and thereafter had time and opportunity to avoid the accident by the exercise of reasonable care, but failed to do so, then, under the doctrine of last clear chance, notwithstanding the negligence of the plaintiff, your verdict must be for the plaintiff.” Instruction No. 12.

Defendant assigns error to the giving of this instruction.

It is undisputed that the instruction as given states the first phase of the formula for the applicability of the doctrine of last clear chance as pronounced and enunciated in Mosso v. E. H. Stanton Co., 75 Wash. 220, 134 Pac. 941, and Leftridge v. Seattle, 130 Wash. 541, 228 Pac. 302. We have through the years adhered to the formula. In Leftridge v. Seattle, supra, it is spelled out as follows (p. 545):

“Going no farther back into the decisions than to Mosso v. Stanton Co., 75 Wash. 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 have continued up to the instant of the injury; but (2) that where the defendant did not actually see the peril of the plaintiff, but by keeping a reasonably careful lookout commensurate with the dangerous character of the agency and the locality should have seen the peril and appreciated it in time, by the exercise of reasonable care, to have avoided the injury, and failure to escape the injury results from failure to keep that lookout and exercise that care, the defendant was liable only when the plaintiff’s negligence had terminated or culminated in a situation of peril from which the plaintiff could not, by the exercise of reasonable care, extricate himself.

“Thus we have two different situations to which the last clear chance rule applies. In the one, the plaintiff’s negligence may continue up to the time of the injury if the defendant actually sees the peril; in the second, the plaintiff’s negligence must have terminated if the defendant did not actually see the peril, but by the exercise of reasonable care should have seen it.

“This rule, as we have said, has been somewhat confused by later decisions which have failed to recognize the distinction between situations where the defendant actually saw and situations where, by the. exercise of reasonable care, the defendant should have seen the position of the plaintiff.”

In the instant case, the plaintiff does not contend or assert that any negligence on his part, which would render appropriate the doctrine of last chance, ceased or culminated in a situation of peril from which he could not, by the exercise of reasonable care, extricate himself. Instead, plaintiff tacitly concedes that such negligence (i.e., failure to maintain a proper lookout or to sound his horn) con-tinned up to the time of the accident. He then asserts, in justification of the instruction as given, that the defendant cannot be heard to say that its driver did not see the plaintiff’s car since it was there to be seen, and that, therefore, the jury was compelled to find that defendant’s driver, in fact, timely saw plaintiff before making his turn.

The plaintiff’s theory, insofar as it purports to substitute the duty to see for the requirement of actually seeing, is incongruous with the underlying philosophy of the first phase of the formula for the applicability of the doctrine of last clear chance in this state.

The predicate upon which a plaintiff’s relief from the contributory causal relationship of continuing negligence rests, via the first phase of the formula, is the defendant’s timely and actual knowledge of plaintiff’s negligence and the danger it portends, coupled with a failure to act upon such knowledge. It is the defendant’s failure to act, upon timely knowledge of plaintiff’s continuing negligence and peril, which causally supervenes the continuing negligence. The defendant’s negligent failure to see the continuing perilous conduct of the plaintiff rises no higher upon the causal ladder than the plaintiff’s continuing negligence. It does not supervene it.

Plaintiff, however, contends that the duty of the defendant driver to see that which was there to be seen constitutes a circumstance sufficient in itself to be considered and weighed by the jury against the driver’s denial of timely knowledge of plaintiff’s presence. Thus, plaintiff argues, the trial court was warranted in submitting to the jury the first phase of the formula. In short, plaintiff contends the prerequisite actual knowledge of defendant’s driver may be established by the inference arising from his duty to see.

We have heretofore, in Thompson v. Porter, 21 Wn. (2d) 449, 151 P. (2d) 433, and in Coins v. Washington Motor Coach Co., 34 Wn. (2d) 1, 208 P. (2d) 143, discussed a similar contention. In the Thompson case, supra, we stated (pp. 451, 455, 457):

“That negligence may be proven by circumstantial evidence is so thoroughly settled that, again, we feel that ho citation of supporting authority is necessary. It is a rule of necessity; for, when one’s negligence depends upon whether or not he saw a thing, no one but he can give direct evidence, and, unless the fact that he did see it can be shown by circumstantial evidence, his statement that he did not see it would completely foreclose the issue.

“

“It is apparent that, in order to bring the instant case under situation (1), as postulated in the Leftridge case [Leftridge v. Seattle, 130 Wash. 541, 228 Pac. 302], it was necessary for the plaintiff to introduce evidence which would entitle the jury to find as a fact that defendant Porter ‘actually saw’ Thompson’s peril, as distinguished from evidence tending to prove that he should have seen him. . . . [Last italics ours.]

“It must be kept in mind at all times, however, that, in order to have the case sent to the jury under (1) of the formula laid down in the Leftridge case, it was incumbent upon the plaintiff to introduce evidence that Porter ‘actually saw’ Thompson; for negligence will not be presumed, and particularly such wanton negligence as knowingly leaving the middle of an unobstructed roadway and running a man down who was walking at its edge.”

And, in the Coins case, supra, we again stated (p. 11):

“. . . Even if Kimmel ought to have seen the bus before this time, that fact is not sufficient in itself to raise an inference that he did see it. Thompson v. Porter, 21 Wn. (2d) 449, 151 P. (2d) 433. For this reason, we do not think that the situation called for an instruction on the first phase of the rule.”

In the instant case, there simply are no physical facts or circumstances in evidence tending to prove anything more than that the defendant’s driver should have seen plaintiff, unless one assumes such driver wantonly and knowingly turned across the converging path of plaintiff’s passing vehicle. Although the evidence would warrant a finding that the driver was primarily negligent in failing to see plaintiff’s vehicle, it is insufficient to warrant the necessary finding that the driver actually saw plaintiff’s vehicle within the contemplation of the first phase of the doctrine of last clear chance.

The trial court erred in giving the challenged instruction.

Defendant next assigns error to the giving of instruction No. 9-A, which reads:

“You are instructed that in this case if you find in the evidence that there are certain physical facts which are uncontroverted and which have a force that overcomes testimony of witnesses which may be to the contrary, then reasonable minds must follow the physical facts and you should, therefore, accept these physical facts and disregard testimony in contradiction thereof.”

At its best, such instruction as worded is argumentative. At its worst, it is tantamount to a comment upon the evidence.

In the instant case, the physical location of plaintiff’s vehicle moments prior to the collision, as such related to the question of whether defendant’s driver knew or should have known of the intended pass, was a principal issue and one very much in dispute. It was plaintiff’s theory that his vehicle was in the left-hand lane of travel for a sufficient length of time and distance so that defendant’s driver must or should have, seen it. Defendant’s theory was to the contrary. It was to this particular facet of the case that instruction No. 9-A was admittedly directed.

Where the question of seeing or not seeing another in unobstructed surroundings is the issue, the underlying principle of instruction No. 9-A — that uncontroverted physical facts prevail over contrary oral testimony — usually finds expression in the stock instruction that , one will be held to have seen that which is there to be seen. Instruction No. 9-A was immediately preceded by such an instruction (instruction No. 9). Instruction No. 9 advised the jury that a person may not be heard “to testify” that he did not see “an object” which was there to be seen. This instruction, to say the least, amply presented and permitted argument upon plaintiff’s theory. The challenged instruction was in this respect repetitious.

A greater vice, however, lies in the fact that instruction No. 9-A, taken in juxtaposition to and with instruction No. 9, literally advised the jury that the testimony of defendant’s driver should be disregarded. Thus, rather than performing a function of objectively advising the jury upon the law, it became, instead, a practically unanswerable argument in support of plaintiff’s theory. Such is not the function of instructions. Holmquist v. Grant Cy., 54 Wn. (2d) 376, 340 P. (2d) 788. The instruction should not have been given.

The judgment is reversed, and the cause remanded for new trial. Costs will abide the result.

Ott, C. J., Hill, Donworth, Finley, Weaver, Rosellini, and Hale, JJ., concur.