Davis v. Browne , 20 Wash. 2d 219 ( 1944 )

The facts are clearly stated in the majority opinion, with which I am in accord as to the conclusion reached upon the second and third questions considered. Upon the first question, however, it is my opinion that the driver of the Davis car was guilty of contributory negligence, and that for this reason the trial court erred in not rendering judgment in appellants' favor, in so far as respondents Florence Davis and Arthur W. Davis, Jr., are concerned. The other respondents, being guests in the Davis car, are not bound by the contributory negligence of Arthur W. Davis, Jr., who was driving.

When the Davis car reached the crest of the rise in the highway, the driver saw the Browne car in the roadway from five hundred to five hundred fifty feet ahead. The visibility was good, and the Browne car carried two red taillights, both of which were shining. Davis frankly stated that he saw the car, but that he assumed it was moving along the highway in the same direction in which he was proceeding. The Davis car, of course, rapidly approached the Browne car, Davis testifying that it was not until he was within from one hundred to one hundred ten feet of that car that he became aware of the fact that it was standing still. Up to this time he was in a position directly behind the Browne car. He turned his car to the left and applied his brakes, but, notwithstanding his efforts, collided with the stationary car, as stated in the majority opinion.

While the Davis car was advancing up the incline, the driver knew that, when he reached the crest, and before starting down the other side, he should make careful observation of that portion of the highway which he had previously been unable to see. Apparently he did this, as he at once saw the Browne car. He approached the car, of course overtaking it rapidly, as it was standing still, but he did not notice that the car was stationary until, as he testified, he was about one hundred feet distant therefrom. In the exercise of ordinary care, he should have been aware that the car was stationary prior to that instant, or should have had his car under control and avoided the collision. The driver, of course, must have been aware of the rapid rate at which he was overtaking the car ahead of him, which was at all times clearly visible. The presence of this car constituted an obvious danger which he was required to contemplate, and which he should have seasonably taken measures to avoid. He must have known that he could not continue on his present course, and he should have prepared by turning to his left to pass the car, assuming that he thought it was moving, before approaching as near to the Browne car as one hundred feet.

Of course a car on a highway at night gives some notice of its position and motion or lack of motion, by the beams of light projected by its headlights. The amount of notice so given to the driver approaching from the rear might vary greatly under different circumstances, but this is an element to be considered. The visibility was good. The Browne car was at all times plainly visible, and, in my opinion, the record clearly shows that Davis was negligent, and that his negligence proximately contributed to the accident.

This view is supported by several of our decisions. In the case of Ebling v. Nielsen, 109 Wn. 355, 186 P. 887, on rehearing, 113 Wn. 698, 193 P. 569, a judgment in favor of the plaintiff, based upon damages suffered in an automobile collision, was reversed, the court holding that plaintiff driver was guilty of contributory negligence, he having run into the rear of a truck which had stopped on its right-hand side of the highway. As in the case at bar, the defendant had violated a statutory law of the road. At the time of the collision, it was dark. A heavy rain was falling. The negligence of the driver of the truck was clearly established, but it was held that the plaintiff "was guilty of contributory negligence of such pronounced and substantial sort as to bar him from any right of recovery."

In the case of Reincke v. Tacoma R. Power Co., 138 Wn. 304,244 P. 577, a judgment in favor of the plaintiff, entered upon the verdict of a jury, was reversed, it appearing that the plaintiff, driving his automobile, ran into a parked tower truck. The accident happened at eleven o'clock in the evening, on a dark, rainy night. Plaintiff testified that the rear red light on the truck was obscured by evergreens hanging down over the light. This court reversed the judgment, with instructions to enter judgment in favor of the defendant, saying:

"It follows, we think, upon this record that there can be no serious question but that respondents' own negligence contributed proximately to the injuries suffered by them, and that it must be held as a matter of law, upon a consideration of all the evidence and all reasonable inferences to be drawn from it, that the respondents are not entitled to recover, and that appellant's motion for a directed verdict and for judgment notwithstanding the verdict, made in the trial court, should have prevailed."

In the case of Ritter v. Johnson, 163 Wn. 153,300 P. 518, 79 A.L.R. 1270, this court, in affirming a judgment in favor of the plaintiff, said:

"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."

In Cronin v. Shell Oil Co., 8 Wn.2d 404, 112 P.2d 824, the plaintiff sued to recover for injuries received as a result of a collision between his car and a truck belonging to defendant. Plaintiff had followed the truck for some distance when it suddenly slowed down or came to a stop. Plaintiff's attention having been momentarily distracted, he failed to notice this abrupt slackening of the speed of the preceding vehicle, and crashed into the rear end of the truck. This court, in an EnBanc opinion, reversed the judgment of the lower court, entered upon the verdict of a jury, and held that plaintiff was guilty of contributory negligence which precluded his recovery.

In most of the cases cited, the driver of the following car was confronted with a sudden change in the situation of the car ahead of him with relation to his own vehicle. Nevertheless, his failure to be prepared to meet such a change and take appropriate steps to avoid colliding with the car ahead was held to constitute such contributory negligence as barred a recovery. In the case at bar, there was no change whatever in the situation of the Browne car from the time Davis first saw that car five hundred feet ahead of him, and Davis had the greater portion of that distance to estimate the situation, to observe that he was rapidly overtaking the Browne car, and to prepare to act as the situation required. If Davis was confronted with an emergency, as stated by the majority, it was one of his own creation. Assuming that Davis believed that the Browne car was moving along the highway, he should have been prepared to pass it with a due margin of safety, and, as this court said in the case of Spencerv. Magrini, 115 Wn. 29, 195 P. 1041:

"If the appellant desired to pass the respondent's car, it was his duty to give some warning and also to keep far enough to the left to avoid the respondent's car. This he did not do. He was therefore negligent."

It is the duty of the driver of an automobile in such a situation as was Davis in the case at bar to use due care to avoid colliding with a vehicle in front of him. Bell v.Northwest Cities Gas Co., 164 Wn. 450, 2 P.2d 644. I am of the opinion that, under the principle approved in the case cited, it must be held that, on the facts in the case at bar, Davis was guilty of contributory negligence as matter of law.

In the case of Beck v. Flasch, 206 Wis. 431, 240 N.W. 190, the supreme court of Wisconsin reversed a judgment in favor of the plaintiff, who sued for damages resulting from an automobile collision, and directed that the action be dismissed. It appeared that plaintiff was driving his automobile along the highway and collided with the defendant's truck, which had been left standing on the pavement while the driver went in search of necessary gasoline. The plaintiff saw the truck when he was about one hundred fifty feet distant therefrom, but did not realize that it was stationary. A car approaching from the opposite direction prevented the plaintiff from passing the standing truck. The jury found that the driver of the truck was negligent. Its finding, it appears, was well founded. In the course of the opinion, the court said:

"Had the truck been moving slowly as respondent assumed it was, still by continuing to overtake it without reducing his speed he was failing to make proper preparation for an emergency likely to occur, in fact just such an emergency as did occur. A driver is bound to avail himself of opportunities to inform himself of the speed at which a car preceding him is traveling."

The case of Kegler v. Hogland Transfer Co., 197 Wn. 566,85 P.2d 1051, was not cited by either party in the briefs filed upon this appeal, and is not referred to in the majority opinion. The case, however, has been called to our attention, and is pertinent to the phase of the case at bar in which I am not in accord with the majority opinion. Under the circumstances, I desire to discuss the case to which I referred, and express my disagreement with the rule laid down therein. I do this notwithstanding the fact that the case supports the conclusion reached by the majority.

In the case cited, the plaintiff had sued for damages suffered as the result of an automobile collision, and, from a judgment entered in plaintiff's favor upon the verdict of a jury, the defendants appealed. It appeared that the defendants had been guilty of violation of Laws of 1937, chapter 189, p. 861, § 33 (Rem. Rev. Stat., Vol. 7A, § 6360-33 [P.C. § 2696-817]) which provides that, when a truck or combination of commercial vehicles is stalled after dark in the main traveled portion of a public highway, the operator shall set out three lanterns or flares in positions as definitely stated by the statute. In the Kegler case, the driver of the truck had set out the flares, but they had burned out prior to the collision, leaving the truck standing in the main traveled portion of the highway, in violation of the statute referred to. It was held that this violation of the statute by the defendants' agent precluded a judicial holding that as matter of law the driver of plaintiff's car was guilty of contributory negligence. The court said:

"Appellants argue that this fact does not preclude holding the driver of respondent's car guilty of contributory negligence as a matter of law. We think, however, that, if the regulation is to accomplish the purpose for which it is designed, it must be held to have just exactly that effect."

The opinion, however, goes on to discuss the facts, and holds that it was for the jury to determine whether or not the driver of respondent's car was guilty of contributory negligence. The proposition stated was decisive of the case, but the court also discussed the factual situation, and on the facts held against the appellants' contention. I am not concerned with the result reached by the department of this court which decided the case, but only with that portion of the opinion above referred to.

In support of the proposition above stated, no authorities are cited. The opinion does not limit the rule laid down to violations of the particular section of the highway code above cited. As I understand the opinion, it is authority for the proposition that when it appears that in a case based upon an automobile collision the defendant had been guilty of violation of some statutory law of the highway, that fact alone precludes a judicial determination that as matter of law the plaintiff was guilty of contributory negligence which proximately contributed to the accident, and for that reason cannot recover. In my opinion, that portion of the opinion in the case cited states an erroneous principle.

Conceding that the violation of a statute or ordinance is negligence per se, the following quotation from 45 C.J., title Negligence, p. 633, § 4, is pertinent to that phase of theKegler case now under discussion:

"`Negligence per se' is a term which is frequently employed to designate an act or omission which is contrary to positive law, or so opposed to the dictates of common prudence that it can be said, without hesitation or doubt, that no careful person would have been guilty thereof; but it has been said that the expression `negligence per se' has not acquired that precise and definite meaning which is essential to the prevention of ambiguity. This distinction between negligence per se and negligence not per se respects merely the method by which the existence of negligence is to be ascertained in particular instances. When once its existence is determined, whetherthrough the court's judicial cognizance or the jury's finding asa matter of fact, there is no further distinction made; and theone form of negligence has, in the further consideration of thecase, just the same effect as the other — no more, no less." (Italics mine.)

The rule laid down apparently embodies the principle that, if in such an action as this the plaintiff could show that the defendant was guilty of negligence per se, the defendant could not show, no matter how convincing the evidence which he introduced might be, that the plaintiff was guilty of the same degree or a greater degree of negligence, and that the defendant was thereby entitled to judgment in his favor as matter of law. Granted that the section of the statute cited in the Kegler case is of great importance for the protection of travelers upon the highway, and that violation thereof constitutes gross negligence, nevertheless I am convinced that the rule laid down is too broad.

Contributory negligence is referred to in 45 C.J., title Negligence, p. 943, §§ 501-2, as follows:

"There are two essential elements in contributory negligence: (1) Negligence for which plaintiff is responsible. (2) Causal connection between such negligence and the injury complained of.

"The term `contributory negligence' necessarily presupposes negligence for which defendant is responsible, which would of itself sustain an action but for the concurrence of the contributory negligence."

The decisions of this court in the case of Ebling v. Nielsen,supra, and Metcalf v. Mud Bay Logging Co., 170 Wn. 59,15 P.2d 278, are to the same effect.

The proposition stated in the Kegler case, supra, accords to negligence per se resulting from violation of a statutory law of the road a very different effect from the negligence of other classes. In my opinion, there is no sound basis in law for such a distinction. Negligence and contributory negligence are to be determined both as matter of fact and matter of law by the same standards. 45 C.J., title Negligence, pp. 942-3, § 501.

The case at bar was tried to the court and not to a jury. The evidence as to the circumstances surrounding the collision in the case at bar is not in dispute, and the court's finding, therefore, does not have the weight ordinarily attached to a finding made upon disputed testimony.

For the reasons stated, I am of the opinion that respondent Arthur W. Davis, Jr., was guilty of contributory negligence, and that, as to him and Florence Davis, the owner of the automobile, the judgment appealed from should be reversed and the action dismissed. I accordingly dissent, in part, from the conclusion reached by the majority.

SIMPSON, C.J., and ROBINSON, J., concur with BEALS, J.