Cronin v. Shell Oil Co.

¹ Reported in 112 P.2d 824. At about nine o'clock in the forenoon, December 10, 1937, Robert Smith, an employee of defendant, Shell Oil Company, was driving a gasoline truck belonging to defendant, in an easterly direction on the road which crosses Ebey slough on a mile and a quarter trestle, a short distance east of Everett. The trestle is straight and level, paved with concrete to the width of twenty-four feet, having a rough surface affording good traction, and is not intersected by any other road. The one and a half ton truck was carrying six hundred gallons of gasoline and some lubricating oil, weighing, with its load, approximately nine tons. The body was painted a brilliant yellow, the hood and fenders red.

Plaintiff, Eugene V. Cronin, left Everett for Monroe, at about a quarter before nine, in his Dodge automobile. For some distance he followed a truck, which he passed near the curve leading to the west end of the trestle. He then saw the oil truck ahead of him on the trestle, at a distance of about thirteen hundred feet. It had rained earlier in the morning, but at the time referred to was not raining, although the pavement was damp. Visibility was excellent. After entering the trestle road, plaintiff raised his speed to something over forty miles per hour, gradually overtaking the oil truck, which plaintiff estimated was traveling at about thirty-five miles per hour.

As plaintiff approached the oil truck, he noticed another truck approaching from the east. When this latter truck, referred to as a "pick-up" truck, which was proceeding very slowly, probably at about one mile per hour, was about even with the oil truck, plaintiff was from two hundred to two hundred fifty feet behind the latter vehicle. The west bound truck, driven by L.H. Warfield, was towing a gas pump, the driver of the truck, in order to watch his tow, standing with one foot on the running board and one near the accelerator, his body partly in and partly out of the truck.

After passing the west bound truck, the oil truck slowed down and, according to the testimony of plaintiff, stopped. Meanwhile, another truck was approaching from the east, and for that reason plaintiff was unable to pass the oil truck. The situation resulted in a collision between plaintiff's automobile and the oil truck, plaintiff's car striking the rear of the truck with considerable force. The collision occurred about four hundred forty feet west of the east end of the trestle.

Plaintiff sued defendant for damages on account of personal injuries received by plaintiff in the collision, and for five hundred dollars damage to plaintiff's automobile. In his complaint, plaintiff alleged that defendant's driver negligently stopped his truck upon that portion of the highway reserved for east bound traffic, at a point where it was impossible for plaintiff to pass the truck because of west bound traffic; that defendant's driver was negligent in stopping his truck in the absence of any emergency requiring such action; and that he failed to give any signal of his intention to stop the truck, and failed to maintain proper observation of other persons using the highway, including plaintiff.

Defendant in its answer denied all negligence on the part of its driver, and pleaded contributory negligence on the part of plaintiff. Plaintiff by his reply denied all negligence on his part, and the action was tried to a jury, which returned a verdict in plaintiff's favor, in the sum of four thousand dollars. From a judgment entered upon this verdict, defendant has appealed.

Appellant assigns error upon the denial of its motion for a nonsuit and a directed verdict at the close of respondent's case; upon the denial of its motions for a directed verdict at the close of all the evidence; upon the refusal of the trial court to give certain instructions requested by appellant; and upon the giving of four instructions to which appellant excepted. Error is also assigned upon the denial of appellant's motion for judgment in his favor notwithstanding the verdict, or in the alternative for a new trial. We shall consider only the assignment of error based upon the denial of appellant's motion for judgment in its favor notwithstanding the verdict.

[1] There is little dispute concerning the relevant facts. The verdict of the jury settled in favor of respondent the question of the negligence of appellant's driver. The only question upon the facts of the case to be here decided is whether or not, upon the record, it should be held as matter of law that respondent was guilty of contributory negligence. In considering that question, we must take that view of the evidence most favorable to the party against whom the motion is made, the question involving no element of judicial discretion. With the principles applicable to such a question in mind, we shall consider the evidence in the case.

Respondent had a complete and unobstructed view of the brilliantly painted truck, for a considerable distance, as both cars moved eastward along the trestle. Respondent gained steadily upon the oil truck, until within from two hundred to two hundred fifty feet thereof. It was at this time that the pick-up truck, towing the gas pump, approaching from the east, passed the oil truck. The pick-up truck was traveling very slowly on its own side of the road, Warfield, its driver, watching the gas pump to be sure that it did not break loose. Just before passing the oil truck, Warfield waved a friendly greeting to Smith, with whom he was acquainted. This greeting attracted respondent's attention.

Respondent testified as follows concerning the matters which he said distracted his attention from the oil truck:

"Q. When you approached the scene of the collision, what did you see? A. Well, I was getting so I could see the pipe-line truck [the pick-up], and there was some object that I noticed that was behind it; it was sticking out over the side of a car there, and then I noticed this man waving. Q. You noticed him waving. Can you show the jury, or tell the jury, how that was being done? A. Well, as near as I can say, he was looking back and waving with this arm, and that's about the size of what I could relate on that. . . A. Well, I naturally watched this here pipe-line man that was doing all the waving; I was wondering who he was motioning to, and I glanced back at the road, and here this Shell truck was apparently stopped in front of me."

On cross-examination:

"When I looked back on the highway I was about twenty-five or thirty feet ahead of this pipe-line truck. I was watching him until I was sure that there was nothing that he was waving to me for, and then I watched back on my side of the road."

Mr. Warfield testified that he had waved a greeting to Mr. Smith; that he had observed respondent's car approaching; and that respondent was watching the witness, and continued to observe the pick-up truck until Mr. Warfield passed respondent's car. The witness also testified that respondent's car was making forty or forty-five miles per hour.

The record contains no evidence indicating that any good reason existed for the concentration of respondent's attention upon the pick-up truck. It was on its own side of the road, proceeding very slowly. Undoubtedly it presented a rather unusual spectacle, but respondent's continued interest therein can be classified only as mere curiosity. Respondent testified, supra, that Warfield was "looking back and waving." If Warfield was looking back, manifestly he was not waving at respondent, or to attract his attention.

Appellant's oil truck commenced to slow down as it passed the pick-up truck. The testimony is in dispute upon the question of whether the truck had come to a complete stop at the moment of impact, or whether it was still proceeding at a speed less than fifteen miles per hour. Respondent was the only witness who testified positively that the truck had completely stopped prior to the collision, and his testimony in this connection is equivocal.

Robert Smith, the driver of appellant's truck, testified that he gave the appropriate arm signal of his intention to stop. His testimony stands uncontradicted. Appellant's truck was equipped with a rear red brake light. Whether this light functioned as the oil truck slowed down does not appear. Respondent testified that he did not see Smith's arm signal indicating his intention to stop, but in view of his testimony that he was watching the pick-up truck, his failure to see the signal may readily be understood.

Respondent testified that he ceased to watch the oil truck when about two hundred or two hundred fifty feet behind it, and that, when he again looked at it he was within seventy-five feet, and gaining on it very rapidly, as he had not reduced his speed below forty miles per hour. Concerning this matter, he testified:

On cross-examination: "Q. Then at that time under those circumstances, you looked at this truck [pick-up truck] over here, and you continued to look at that truck until you finally looked back on the highway here, and at that point you were about seventy-five feet behind the Shell truck, that is correct, is it not? A. About that far. . . . Q. After looking off the highway for some length of time, you were seventy-five feet behind the truck, then you looked back and saw the Shell truck ahead of you, and after seeing it you did not put your brakes on during the time you traveled from seventy-five feet down to about thirty or thirty-five feet again, is that right? A. About that, yes."

On direct examination: "Q. Tell what happened. A. Well, I naturally watched this here pipe-line man that was doing all the waving; I was wondering who he was motioning to, and I glanced back at the road, and here this Shell truck was apparently stopped in front of me. Well, my first thought was to go around him. I glanced up and here was this pulp-wood truck coming, so close that if I swung out I was going to take the pulp-wood truck on at the front there, and that would be all my fault, and it would be dangerous for a head-on collision, so the best thing I could do was to try to stop and go into the back end of the Shell truck."

The pulp wood truck referred to by respondent was approaching along the trestle from the east, traveling slowly and on its proper side of the road. Testimony was introduced to the effect that respondent could have safely passed the oil truck on its left, but the evidence upon this question being in conflict, it must be assumed that respondent was not negligent in not attempting to pass appellant's truck.

Rem. Rev. Stat., Vol. 7A, § 6360-81 [P.C. § 2696-839], reads as follows:

"It shall be unlawful for the operator of any motor vehicle to follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of any such public highway. . . ."

Respondent was obligated to observe this statute.

Respondent testified that he applied his brakes while approximately thirty feet from the oil truck. It must be assumed that he did so. Asked if, when he first looked away from his side of the road and ceased to observe the oil truck, the latter had commenced to stop, respondent answered, "I would say that it had not," and stated later that when he looked away he had no reason to believe that the truck was slowing down. According to respondent's version, appellant's truck had not commenced to slow down when he ceased observing it, but had come to a complete stop when he next looked at it. In other words, a large, brightly colored and conspicuous oil truck, weighing, with its load, eighteen thousand pounds, reduced its speed from thirty-five miles per hour to zero while respondent, proceeding at forty to forty-five miles per hour, from a point two hundred fifty feet behind the truck, focused his attention upon the pick-up truck, which vehicle, while it might arouse his curiosity, had nothing to do with the driving of respondent's car. It does not appear that respondent regarded the pick-up truck as a menace to him, as it did not cause him to reduce his speed.

As we assume that appellant's driver was negligent in stopping the truck on the trestle, in the absence of any emergency requiring such an act, Rem. Rev. Stat., Vol. 7A, §§ 6360-107 and 6360-110 [P.C. §§ 2696-865, 2696-868], cited by respondent, need not be considered.

[2] Respondent also cites Rem. Rev. Stat., Vol. 7A, § 6360-85 [P.C. § 2696-843], concerning the giving of arm signals by the driver of a car intending to change his direction or stop. The pertinent portion of this section reads as follows:

"If he intends to stop he shall extend his arm from the left side of such vehicle with his forearm lowered vertically continuously for a reasonable length of time. For the purpose of this section, a reasonable length of time shall be that time required to traverse a distance in feet equal to five times the maximum speed in miles per hour allowed by law during the approach to the point of turning or stopping."

Respondent argues that this section required appellant's driver to give the arm signal for the length of time required for him to travel two hundred fifty feet, at the speed at which he was traveling; in other words, that irrespective of speed, the signal must be given continuously while the car proceeds two hundred fifty feet. This is not the meaning of the statute, which requires the giving of a signal for a specified period of time, not distance, the time to be fixed by the time required for a car moving at the maximum lawful speed to cover a distance in feet equal to five times that speed.

Respondent argues that he continued to watch the pick-up truck driven by Mr. Warfield, until he had passed it. He repeatedly calls attention to the fact that he at no time looked away from the highway, and that both the pick-up truck and appellant's truck were within his line of vision until he passed the former, and of course appellant's truck should have his particular attention thereafter. He insists that he was looking at the road ahead of him at all times, seeing that which was on the road, and looking out for that which might be a source of danger. Notwithstanding this careful observation which respondent insists he made, he did not see the oil truck commence, and continue, to slow down, but continued his former rate of speed until he saw the oil truck apparently stopped, very close and directly in front of him. Even then, respondent did not apply his brakes until within thirty-five feet of the oil truck. Appellant's truck traveled at least seventy feet after it commenced to slow down. No witness except respondent testified that the oil truck was motionless at the time of the collision, the other witnesses testified that it was slowing down preparatory to a stop. In any event, the very conspicuous oil truck was at all times plainly visible to respondent, who continued following immediately in its trace, without lessening his speed or applying his brakes, until he was within thirty-five feet of it.

Respondent cites authorities following the rule laid down in 3 Blashfield Cyc. of Automobile Law and Practice, 144, § 1748, to the effect that where other vehicles or travelers along the highway are so close to a motorist that they may possibly collide with his car, and are being negligently or improperly driven, thereby causing a reasonable apprehension of danger and distracting his attention, causing some relaxation in the care with which he looks or listens for an approaching danger, that may be a factor of importance in determining whether such incomplete attention was reasonable and sufficient, under the circumstances. We find no occasion in the case at bar to apply the rule relied upon by respondent. The highway was twenty-four feet wide, the pick-up truck was on its proper side thereof, and it does not appear that it anywise menaced respondent's safety. Referring to Mr. Warfield, respondent simply testified that he was wondering who Warfield was motioning to.

In the case of Ritter v. Johnson, 163 Wash. 153,300 P. 518, 79 A.L.R. 1270, it appeared that the defendant (appellant before this court) was traveling at thirty miles an hour, two car lengths behind another car. There was considerable traffic on the road, and we held that, under the circumstances, the defendant "was required to maintain careful and continual observation of the car ahead of him in order to avoid a collision with that machine." We stated:

"The rule laid down by this court equally requires the driver of an automobile to keep such distance from a car ahead of him and maintain such observation of such car that an emergency stop may be safely made."

The judgment against the defendant was affirmed.

[3] In the case of Silverstein v. Adams, 134 Wash. 430,235 P. 784, this court held that a person, who testified that he looked and did not see an object which was plainly there to be seen, is bound to the same extent as though he had seen the object. This rule has been consistently followed by this and many other courts. Respondent vigorously contends that he was watching the road ahead of him and observing what was on it, but he did not see that the oil truck was slowing down, until it was too late to avoid striking it.

In the case of Larpenteur v. Eldridge Motors, 185 Wash. 530,55 P.2d 1064, a jury brought in a verdict in favor of the plaintiff, in an action by one who was riding a bicycle following an automobile, and who suffered injuries as the result of a collision between the bicycle and the car, the latter having made a sudden stop. The trial court granted the defendant's motion for judgment in its favor notwithstanding the verdict, and on appeal the judgment was affirmed. The plaintiff was following the automobile at a distance of eighteen or twenty feet. The automobile suddenly stopped, without warning, with the result that the plaintiff collided with the car and was injured. In the course of the opinion we said:

"The conduct of the appellant was not the exercise of that care required of him while following the automobile. He had the right, of course, to follow traffic at a reasonable and safe distance, but he was also under the duty of reasonably governing his speed and maintaining such a reasonable distance back of the automobile and such reasonable lookout ahead as would provide for the contingency of the sudden stopping of the car in front of him.

"With respect to automobiles, the rule in such cases is stated, generally, in 2 Blashfield Cyclopedia of Automobile Law and Practice (1935 Ed.) 94, § 942, as follows:

"``A motorist has right to follow another motorist at reasonable and safe distance. However, he must govern his speed or keep back a reasonably safe distance so as to provide for the contingency of a car in front suddenly stopping, maintaining a proper lookout for the car immediately preceding him, and so that he can stop without a collision, or can turn out sufficiently to pass the vehicle in front without going across the street in the way of traffic approaching from the opposite direction, as that will naturally result in collision with such traffic.'"

We were of the opinion that the evidence demonstrated that the plaintiff "was either not maintaining a proper lookout or else that his speed was too great to provide a fair margin of safety under the circumstances." The principles relied upon should apply to any following vehicle, with due regard to differing conditions and circumstances.

The cases of Fuld v. Maryland Casualty Co., 178 So. (La.App.) 201, and Smith v. Chadick-Hayes Co., 19 La. App. 523,139 So. 689, discuss the burden which rests upon the driver of a following car to carefully observe the preceding traffic and maintain speed and distance consistent with safety.

[4] Bearing in mind the rules applicable in considering a motion for judgment notwithstanding a verdict, as stated in the case of Larpenteur v. Eldridge Motors, supra, and giving respondent the benefit of the rules referred to, we are nevertheless of the opinion that from the record before us it must be held that respondent was guilty of contributory negligence which materially and proximately contributed to the damages which he suffered.

The judgment appealed from is accordingly reversed, with instructions to dismiss the action.

ROBINSON, C.J., STEINERT, JEFFERS, SIMPSON, and DRIVER, JJ., concur.