Chadwick v. Ek , 1 Wash. 2d 117 ( 1939 )

I agree with the prevailing opinion that an adjudication of the issue of contributory negligence — the only question before us — requires an understanding of the facts, and that, necessarily, the facts must be considered in the light most favorable to respondents.

If we follow the rule invoked by the majority, we can not, logically, arrive at any conclusion other than that the question whether respondents exercised reasonable care was a question for the jury; and we will not overrule, expressly or sub silentio, our prior opinions on the same question. These prior cases, on principle, are indistinguishable from the case at bar. A consistency between those prior opinions and the prevailing opinion in the case at bar has not been demonstrated by the majority.

In the majority opinion, it is stated that the respondents were well aware of the atmospheric conditions and their effect upon the visibility of others using the highway; that they knew that the range of vision did not exceed one hundred feet; that they knew that the highway was heavily traveled and that northbound traffic would proceed along the lane in which respondents were standing. The majority opinion then recites that, despite respondents' knowledge of their perilous position and the presence of a place of safety near at hand on the shoulder of the highway, the respondents chose to occupy a position of danger while exchanging identifications, with their backs toward approaching traffic and giving no attention whatever to the probability of oncoming vehicles. It is insisted in the majority opinion that, even if respondents were, as they contend, standing for a necessary purpose behind Mrs. Chadwick's automobile, the respondents were not keeping a lookout; hence, that constituted contributory negligence as a matter of law and bars recovery. It is the holding of the majority, respecting the doctrine of last clear chance which respondents invoke, that that rule has no application in the case at bar, for the reason that appellant Ek never saw respondents until the moment of the collision, and at that time the negligence of respondents had not ceased.

The record does not sustain the majority's position that respondents were not giving any attention to the probability of the approach of northbound traffic. The testimony is not that respondents did not look. At the most, the testimony is that they did not gaze continuously. It should also be borne in mind that Ek's range of vision was from fifty to one hundred feet. In answer to the question, "During the time that you were standing in back of your car did you ever look toward Renton?" Mrs. Chadwick testified in the affirmative. She further testified:

"Q. From the time you got to the rear of your car until the impact you did not look any further up the highway toward Renton? A. Oh, I don't know. I was not conscious of it. Anybody would look around, you know; but I was not conscious of looking. Q. But in any event, from the time you did get to the back of your car you did not look continuously? A. No, sir; I did not look continuously. It would be intermittent."

Another witness testified as follows:

"Q. From the time they were standing in the positions you have just described, at the rear of the Chadwick car. Did they remain in those same positions, or substantially in those same positions, until they were struck by the Ek car? A. When they first came back they were at the side of the car, and then they went to the rear of the car. Q. From the time they got to the rear of the Chadwick car, did they remain in those same positions substantially until they were struck by the Ek car? A. Yes, sir. Mrs. Chadwick was going off the highway. Q. At what time? A. Just before she was hit."

Mrs. Chadwick refused to state positively the exact position of Mr. Benoit. She testified that he could not have been facing her car or he would not have been able to talk to her, but that he was turned sideways. The testimony is as follows:

"Q. And when you got out of your car on the left-hand side, and were out on the pavement of the highway, Mr. Benoit started back up the highway? A. To meet me. Q. And he met you at the car? A. Yes, sir. Q. Mr. Benoit had another party with him? A. Yes, sir. Q. And you and Mr. Benoit came to the rear of your car? A. I looked over the whole side of my car first, and then I went to the rear. Q. And the damage caused to your car was very slight? A. Very slight. Q. And in no way disabled your car? A. No, sir. As I found out on examination. Q. It was not disabled? You were able to drive it, and, as a matter of fact, drove it after the bump, did you not? A. Until I stopped it, yes, sir. Q. But it was in no way disabled? A. I would not say so, no. Q. And then after having seen that the damage was very slight, and there was nothing disabled about the car, as I understand it, you then went to the back of your car? A. Yes, sir. Q. And Mr. Benoit and you were standing there and were preparing to exchange your names and license numbers, and so on? A. Yes, sir. Q. You had no other purpose in being there at that time, excepting merely to exchange names? A. To comply with the state law. Q. No other purpose than to exchange information? A. No, sir. Q. You telling him your name, and he telling you his, and taking numbers, and so on, is that correct? A. That is correct. Q. As I understand, as you were standing there Mr. Benoit took up his position immediately to the rear of the left rear corner of your car, didn't he? A. After we had been over to the side. Q. After you had been to the side of your car, you came to the back end, and stood at the back end of your car with Mr. Benoit standing just back of the left rear corner? A. Somewhere in there. I couldn't state just where, but my car was — I don't know how to explain it — he wasn't out in the highway. Q. He was standing fully on the pavement on the highway? A. He was standing fully on the pavement, but he wasn't west of my car. I couldn't say exactly where he was. Q. But back of the left rear corner of your car? A. Yes, sir; about there. But I could not state his exact position. Q. And he stood there facing your car, did he not? A. I don't know how he was facing. Q. You were standing talking to him? A. Yes, sir. But I don't know whether he was faced — he could not be facing my car, or he would not be able to talk to me. He was headed toward the car. Q. He was not facing back toward Renton? A. I imagine he was turned sideways, but he wouldn't be facing the car. Q. He had his back in the direction from which traffic would be coming? A. I imagine so. Q. And he stood there in that same position all the time until he was struck? A. We were standing there. Q. The two of you in the position you have described? A. I didn't describe mine yet. Q. We will come to that in a minute. You have described his position until he was struck? A. As near as I can remember. I cannot say definitely."

There is no evidence that Mr. Benoit did not turn his head and glance backward over his shoulder. While there is testimony tending to establish the fact that he did not change the position of his feet, there is testimony that Mr. Benoit was standing sidewise at the time he was struck; that he was struck on his right side, and that all of his injuries were on the right side of his body.

Ek had a space of seventeen or eighteen feet in which to pass to one side of respondents' automobile. The range of his vision was from fifty to one hundred feet. Had he looked, if his windshield were clean, he could have seen that automobile. He can not say that he did not see that which he was required to see and would have seen had he been looking. If Mrs. Chadwick and Mr. Benoit had been looking directly at the approaching automobile of Mr. Ek, the situation of respondents would not have been aided. They would doubtless have assumed, until the instant of collision, as they would have had the right to assume, that Ek would veer his automobile slightly to the left and pass the other automobile in safety. Whatever Mrs. Chadwick and Mr. Benoit did or did not do under the facts of this case, in no sense constitutes a proximate cause of the injuries. The proximate cause, the only proximate cause, was the gross negligence of Ek.

As stated above, the majority opinion recites that appellant Ek never saw respondents until he collided with them, and at that time the negligence of respondents had not ceased. There is no question as to the gross negligence of Mr. Ek. Whether respondents were in a position in the rear of their automobile as to place them without the range of appellant's vision, is beside the question. Let us assume, for the purpose of this argument, that neither respondent was or could have been seen near the automobile of respondents. If one negligently places himself in a dangerous situation upon the highway and a person in control of an automobile actually sees the traveler's situation and should appreciate his danger, the last clear chance doctrine would apply without regard to the continuing negligence of the traveler concurring with that of the operator up to the very instant of the injury. Mosso v. Stanton Co., 75 Wash. 220, 134 P. 941, L.R.A. 1916A, 943.

It would hardly be argued by the majority that, if appellant Ek had seen the automobile of respondent and persisted in his course until he had collided with that automobile, that the fact that he did not see in the automobile he struck, or near that automobile, a human being, that the last clear chance doctrine would not apply. Actual knowledge by the defendant of the peril of the occupant of the car or the person nearby, is not the sine qua non of the doctrine of last clear chance. Mr. Ek may not say that he did not see the automobile which he could have seen had he looked within time to veer to the left and avoid the collision. Neither in reason should he be absolved from liability for personal injuries sustained by the respondents because he could not have seen the respondents if he had looked, assuming they were in a position where Mr. Ek could not have seen them. He knew, or he is charged with knowledge, that an automobile directly ahead of him within one hundred feet of his range of vision would be struck by his automobile if he did not veer to the left. The last clear chance doctrine should be extended to a case wherein the situation of persons, as in the case of respondents, is such that the defendant is charged with knowledge that some human being is in a state of present peril. As we said in Chapin v. Stickel,173 Wash. 174, 22 P.2d 190:

"Otherwise, though the engineer and fireman of a locomotive saw a stalled automobile on the railroad track within time to have averted a collision with such automobile, the tort feasor would be absolved from liability for personal injuries sustained in the collision by the occupants of the automobile, if the engineer and fireman did not see such occupants.

"It is not a condition precedent to the application of the doctrine of the last clear chance that the defendant have actual knowledge of the plaintiff's peril if, under circumstances such as obtain in the case at bar, the defendant's negligence was so reckless as to betoken indifference to knowledge. In such case, as in the case at bar, the tort feasor is charged with knowledge that human beings are in a perilous situation.

"While decided upon a different ground, the language of the supreme court of West Virginia in Smith v. Gould, 110 W. Va. 579, 159 S.E. 53, with reference to the extension of the principle to a case in which the defendant did not actually know of the plaintiff's peril in time to avoid the injury, but in the exercise of reasonable care under the circumstances would have known of the plaintiff's perilous situation in time to have avoided the injury, is pertinent in the case at bar.

"``It is said that actual knowledge by the defendant of the plaintiff's peril is the sine qua non of the doctrine; that the imputed knowledge idea is out of place; that the last clear chance doctrine is founded on the basis of actual knowledge by the defendant of the plaintiff's peril and that a defendant cannot fairly be said to have had a last clear chance to avoid inflicting injury if he did not actually see the peril in time to avoid the injury; that where neither party sees the other there is a situation of concurring negligence; that each owes a duty of lookout; hence no sound basis for recovery by the injured party where the defendant did not actually know the situation. However, the rationale for the extension of the doctrine to a situation wherein the negligent defendant could and should have seen the plaintiff's peril and should have avoided inflicting injury on him is not without its vigorous champions. 45 Corpus Juris, page 990. Such situation is accentuated where there is owing by the defendant to the plaintiff a duty to keep a reasonable lookout commensurate with the instrumentality which he is operating, the locality and attendant circumstances considered.'

"The dissenting opinion in that case cites Woloszynowski v.New York Central R. Co., 254 N.Y. 206, 172 N.E. 471, in which the court said:

"``The doctrine of the last clear chance, however, is never wakened into action unless and until there is brought home to the defendant to be charged with liability a knowledge that another is in a state of present peril, . . .'

"The remainder of the paragraph from which the quotation is taken should be quoted. The entire paragraph reads as follows:

"``The doctrine of the last clear chance, however, is never wakened into action unless and until there is brought home to the defendant to be charged with liability a knowledge that another is in a state of present peril, in which event there must be reasonable effort to counteract the peril and avert its consequences. (Wright v. Union Ry. Co., 224 A.D. 55 [229 N YS. 162]; 250 N.Y. 526 [166 N.E. 310].) Knowledge may be established by circumstantial evidence, in the face even of professions of ignorance (cf. Bragg v. Central New England Ry.Co., 228 N.Y. 54 [126 N.E. 253]), but knowledge there must be,or negligence so reckless as to betoken indifference toknowledge.' (Italics are ours.)"

In Deitchler v. Ball, 99 Wash. 483, 170 P. 123, we held that, where a man stood on the highway putting up the top of his car when he was struck by the defendant's automobile, it was not necessary for him to pay particular attention to passersby who had plenty of room to avoid him. We said:

"Appellant next argues that the respondent was guilty of contributory negligence. Respondent testified in substance that, while he was putting up the top of his car and fastening the straps over the front to hold the top down, and while he was right up to the car as near as he could stand, he paid no attention to what was going on about him. Naturally this would be true, because, when he was engaged in fastening the top as it should be fastened, in standing close to his car, as he says he was, he had a right to assume that no person would run into him. It was not necessary for him to pay particular attention to passersby who had plenty of room to avoid him. The respondent, no doubt, as contended by the appellant, was required to use ordinary reasonable care for his safety, and if his testimony is to be believed at all, he did so when he was standing close to his car attending to his business, and was not putting himself in the way of danger. The respondent clearly had the right to stop his car at the place he did, and he clearly had a right to occupy a portion of the paved way in attending to whatever was necessary to be done about his car; and it was the duty of persons coming up to him to so control their cars as not to injure him, especially where there was room to avoid injury, as there evidently was in this case. In the case of Stephenson v.Parton, 89 Wash. 653, 155 P. 147, quoting from 2 R.C.L. p. 1184, we said:

"``"If a person is standing in the highway, a driver must notice him and take care not to injure him, and a failure to see a pedestrian in the street may amount to negligence"'."

In Freeman v. Smit, 193 Wash. 346, 75 P.2d 575, we citedDeitchler v. Ball, supra, with approval. See, also, annotation of 61 A.L.R. 1164. To the same effect is Grubbs v. Grayson,165 Wash. 548, 5 P.2d 1033.

In Smith v. Seattle, 172 Wash. 66, 19 P.2d 652, a man drove his truck onto the street car tracks and was killed by a street car. A passenger on the street car saw the truck approaching from the right from a point about two hundred and fifty feet distant. The lights were burning on the street car, which was making a great deal of noise. There was nothing to prevent the operator of the truck from seeing the street car. We held that this was a case in which the presumption must be indulged that the decedent used due care, since there was no evidence to the contrary, although it must be conceded that, if the decedent had looked or listened, he would have seen or heard the street car approaching at a rapid rate of speed. In the case at bar, there is no evidence that Mr. Benoit did not look.

Thornton v. Eneroth, 177 Wash. 1, 30 P.2d 951, involved five successive automobile collisions resulting from Eneroth having stopped his automobile on the highway at a place where neither he nor any of the other automobiles could get off the pavement. We held in that case it was the obstruction created by stopping the first automobile on the pavement that caused all of the other collisions; but in the case at bar, the collision between the Chadwick and Benoit cars was only a condition, and was not any more the proximate cause of their presence on the highway than if Benoit had alighted from his automobile to assist Mrs. Chadwick in repairing a tire or performing any other courteous act. In the case cited, we held that it might be possible for some of the drivers to have so operated their automobiles as to have a collision and not be deemed guilty of negligence, while others might be chargeable therewith; and that whether plaintiff, driving a car in unusual weather conditions and semidarkness, was guilty of contributory negligence in colliding with another stopped on the pavement, was a question for the jury.

See, also, Bracy v. Lund, 197 Wash. 188, 84 P.2d 670, in which we considered the question whether the presence of a truck and trailer upon a bridge was a condition rather than a contributing proximate cause to a collision between two automobiles passing each other on the bridge. In that case, the driver of the truck and trailer stopped on a bridge contrary to a city ordinance. We held that he was not guilty of negligence which was the proximate cause of a collision between two passing automobiles where a clear space of twenty-three or twenty-four feet was left free and open for passing cars. All of the lights of the truck and trailer were burning, flares had been placed, and there was a clear view of at least a thousand feet in either direction; the presence of the truck and trailer on the bridge constituted merely a condition and not a contributing proximate cause of the collision.

In Gooschin v. Ladd, 177 Wash. 625, 33 P.2d 653, we held that the question whether plaintiff was guilty of contributory negligence with reference to the position of his automobile stalled at the side of the road, was a question for the jury. We further held that, even if the left front of the automobile was on the paved portion of the highway, the plaintiff, who was standing alongside of his car, was not a pedestrian within the contemplation of Rem. Rev. Stat., § 6362-41 (6). The present statute (Rem. Rev. Stat., Vol. 7A, § 6360-110) imposes no greater responsibility upon the person stopping an automobile on the highway than the former statute.

In Karp v. Herder, 181 Wash. 583, 44 P.2d 808, we held that the fact that there was positive testimony that Mrs. Karp did not stop before entering the highway and did not yield the right of way to Herder, did not overcome the presumption that Mrs. Karp, who was killed, did not exercise reasonable care; and that it was proper to instruct the jury that there was a presumption that Mrs. Karp, who was killed entering an intersection, yielded the right of way notwithstanding positive evidence to the contrary. In the case at bar, we repeat, thereis no positive evidence that Mr. Benoit did not look. We stated in the case cited that the presumption of due care on the part of a deceased person does not apply only where no one witnesses the accident, but that it has its application in all cases and may be strong enough to overcome the testimony of an eye witness. Another apt authority is Hinton v. Carmody, 182 Wash. 123,45 P.2d 32, in which we held that the negligence of a motorist in running down and killing a pedestrian crossing the highway at an intersection is a question for the jury where there was evidence that he was driving at an excessive speed and could have avoided the accident by passing behind the deceased, where there was ample room. We said:

"From the facts shown in the case, if decedent saw the automobile of appellants, she evidently believed she had, and actually did have, ample time to cross its path; in consequence of which, after pausing at the edge of the pavement, she proceeded across the intersection and was struck by the automobile. It had ample room on the paved portion to have avoided her by passing to her rear, but did not. She was on foot.. . .

"Although there is some conflicting evidence on behalf of respondents, the credibility thereof and the probabilities as to their correctness, were for the jury to decide. Eaton v.Hewitt, 171 Wash. 260, 17 P.2d 906.

"Being an affirmative plea, in the absence of evidence to the contrary, or unless from all the evidence the court can say that the contributory negligence of the person killed was so evident that reasonable minds could not differ thereon, the presumption is that such person exercised due care. Eaton v. Hewitt, supra;Reinhart v. Oregon-Washington Railroad Navigation Co.,174 Wash. 320, 24 P.2d 615; Smith v. Seattle, 178 Wash. 477,35 P.2d 27; Durham v. Crist, 180 Wash. 213, 38 P.2d 1054.

"It is plain that, under our decisions, there is ample and competent testimony to carry the question of negligence of decedent to the jury as a question of fact and could not be taken from the jury as a matter of law."

In Knutson v. McMahan, 186 Wash. 518, 58 P.2d 1033, we held that, where a pedestrian died shortly after an accident, it is presumed that, even though she was crossing the street in violation of a city ordinance, she was doing so in the exercise of due care and was not guilty of negligence that contributed to the accident. We said that, while she was guilty of negligence as a matter of law, it could not defeat a recovery unless her negligence materially contributed to the accident; and as she died shortly after the accident, it was presumed that she was doing so in the exercise of due care.

In Culliton v. Chase, 174 Wash. 363, 25 P.2d 81, and inJensen v. Henneford, 185 Wash. 209, 53 P.2d 607, we insisted that the rule of legal stability — we have more than once enunciated the rule from which the majority are now departing — should apply. I now invoke that rule. The facts in the case at bar do not warrant, no valid reason is advanced by the majority for departure therefrom, and there is no justification for, this invasion of the province of the jury.

The judgments should be affirmed.

BLAKE, C.J., MAIN, and GERAGHTY, JJ., concur with MILLARD, J.