Martin v. Hadenfeldt , 157 Wash. 563 ( 1930 )

Fullerton, J.

(dissenting) — I cannot concur in the foregoing opinion.

Of the four propositions specifically laid down for the guidance of automobile drivers at highway intersections, the first and second, while perhaps stated in language not heretofore used by the court, do not materially change the rules as we have announced them in other cases.

The third is entirely new, and is concededly contrary to our prior holdings. It is, in my opinion, also contrary to any just legal principle. In its effect, it announces the rule that a driver of an automobile on a public highway may deliberately and intentionally violate all of the rules of the road laid down by the legislature for the guidance of such drivers and still claim the protection that is accorded to a driver who obeys the rules. This is, as I say, an entirely new principle. Certainly, this court has never heretofore •so held, and, in so far as I am aware, no other court has ever so held. It may be thought that I misinterpret the language of the majority. But I cannot conceive that it can have any other meaning. As the majority note, we had heretofore held that, where two automobiles were approaching a highway intersection, they were not simultaneously approaching a given point in the intersection, within the meaning of that phrase as it is used in the statute, if one or both of the automobiles were exceeding the speed limit. In other words, we made a distinction between the literal meaning of the statutory words and their statutory meaning, and held that the statute had application to those only who obeyed the statute, not to those who violated it.

The majority are now pleased to say that our former interpretation of the statute was a mistaken one, and now hold that, if a collision occurs at the intersection, it conclusively proves that the automobiles were simultaneously approaching the intersection. If the change in the rule stopped here, it could be ignored, perhaps, as a mere useless quarrel over phraseology. But the majority do not so stop. They go further and hold that the further provisions of the statute apply to all situations where a collision occurs, and this regardless of the question whether one of the parties was or was not violating the statute. Stated in another way, they place the violator of the statute in the same situation he would have been placed had he not violated the statute. This, I repeat, is to hold that one who violates a prohibitory statute may claim the bene fit of the statute, and is contrary to any just, legal principle.

The fourth of the special propositions, when read in connection with illustrative matter which follows it, lays down a rule of evidence contrary to the rule as we have heretofore announced it.. In numerous cases, this court has held that, when a driver of an automobile on a highway approaches a highway intersection, looks to his right and sees an automobile approaching at a sufficient distance away to enable him to cross the intersection with safety if the approaching automobile is traveling within the speed limit, he may proceed across the intersection without being guilty of negligence. Arid we have further held that, if the approaching automobile exceeds the speed limit, and, because of so' doing, strikes and injures him, he may recover for his-injuries if he convinces the trier of the fact that such was the situation.

The majority now say that these rules are no longer applicable; they say that the driver of the automobile-who violates the statute is the favored driver, entitled to the benefit of the rule of simultaneous approach, and that the injured driver has

“. . . the burden of producing evidence which will carry to the jury the question of fact whether or no the favored driver on the right so wrongfully, negligently, or unlawfully operated his car as would deceive a reasonably prudent driver on the left and warrant him in going forward upon the assumption that he had the right to proceed.”

To me the rule the majority now'lay down is not understandable. If it is not sufficient proof to warrant a recovery on the part of the driver on the left to show that there would have been no injury if the driver on the right had kept within the law, I can conceive of nothing which he can add thereto which would warrant a recovery. In the situation presented in the present record, to which the majority apply the rule, there is nothing else that can be shown. The proofs exhaust the facts, and if they are not sufficient to permit a recovery, then in all such situations there can be no recovery against the wrongdoer.

The rule of the majority is also contrary to another rule this court has adopted and heretofore applied. We have held that one driver may presume that another driver will not violate the law, and may act on that presumption without himself being guilty of negligence. The majority say that this is no longer the rule; they say that

“. . . if there is anything in the situation which would warn a reasonably prudent driver that the car approaching on the right . . . is so far exceeding the speed limit as to be actually in striking distance, then it is the duty of the driver on the left, notwithstanding the negligence and the violation of the law by the driver on the right, to yield the right of way . J?

As a word of cautionary advice, perhaps no one could find fault with this statement. Drivers on the highways every day meet with the situation described and similar situations, and most of them prefer to wait a few seconds or minutes rather than to take the chance of being killed, or the chance of being confined for an indefinite time in a hospital. But that it is correct as a legal concept, I most emphatically deny. No correct rule or principle of law ever compels one person to sacrifice his rights or his property to the violators of the law, and no correct principle of law prohibits him from recovering from the law violator for injuries he may suffer by the acts of the law violator merely because he refuses to make the sacrifice.

The judgment, in my opinion, should be affirmed.