Fothergill v. Kaija , 183 Wash. 112 ( 1935 )

I am unable to agree with the majority. The theory of the respondent, as shown by her complaint, was that the appellant was guilty of negligence, as a matter of law, because he did not stop at the sign board seventy-five feet away from the Pacific highway. Her evidence was based upon that assumption and the court adopted that theory in its instructions to the jury. All of this, in my opinion, proceeded upon an incorrect view of the law.

The majority opinion quotes Rem. Rev. Stat., §§ 6362-41a and 6362-41b [P.C. §§ 196-58 and 196-59], and I assume that those sections are recognized as being the law. Section 6362-41a requires the board of county commissioners to erect proper signs on county or township roads at points actually or approximatelythree hundred feet distant from heavily traveled state highways, such as the Pacific highway, and also at points of intersection. It is conceded that in this case no such sign was erected at either place. The neglect, however, in this instance, is not charged to the county but to the appellant. Section 6362-41b requires the traveler upon the road on which a stop notice is posted to come to a complete stop at the point wherethe two roads intersect. It does not require him to come to a complete stop seventy-five feet away from the intersection, at a point where an unauthorized sign post is erected.

The majority opinion naively says with reference to the appellant:

"He testified that he intended to stop his car at the intersection of the Yelm road and the Pacific highway pavement, but he never testified that he did stop. The best evidence thathe did not intend to stop was the fact that he did not stop." (Italics supplied.)

I confess that I do not comprehend the logic of this statement. If a man intends to go to a certain place and is killed before he gets there, is the fact that he never arrived at his destination the best evidence that he never intended to go there at all? The evidence in this case, from respondent's own witness, the only eye-witness to the accident, was that appellant was slowing down at the time of the occurrence. That of itself should be a sufficient answer to the quoted statement in the majority opinion. But the conclusive answer, it seems to me, is that appellant was not required to stop until he reached the intersection. The statute so provides.

Appellant requested the court to instruct the jury upon the law as set forth in §§ 6362-41a and 6362-41b, the requested instruction following almost verbatim the language of those sections. The court declined to do so. To the contrary, the court gave repeated instructions to the effect that it was the duty of the appellant to stop at the particular stop sign, and that failure to stop at that point was negligence.

The vice of the situation is manifest. The jury was told that it was the positive duty of the appellant to come to a complete stop seventy-five feet away from the intersection, and that failure to do so was negligence, as a matter of law. In other words, the jury was permitted to find appellant guilty of negligence, as it did, upon an incorrect statement and theory of the law. The jury having been misguided upon a vital issue in the case, its verdict should not be allowed to stand.

The motion for new trial should have been granted.

BLAKE and BEALS, JJ., concur with STEINERT, J.