Zahn v. Arbelo

¶1(dissenting)—I must dissent from the majority and concurring opinions for several reasons. First, I agree with the concurring opinion that the majority’s recitation of the facts seems somewhat skimpy. Second, the majority’s interpretation of the selected facts seems to me to be untenable. Third, the majority and concurring judges seek to introduce into the kaleidoscopic intersection-automobile-collision cases new rules or standards which, in my judgment, are contrary to our prior decisions. Fourth, the majority’s apparent quest for a panacea to yield absolute certainty and ease of decision in intersection-automobile-collision cases is illusory. Fifth, such a quest places an unrealistic reliance upon mechanical jurisprudence or formulations not likely to produce either certainty or ease of decision, but rather likely to result in harsh, unjust, and perhaps illogical disposition of intersection cases when they are viewed in terms of everyday notions of fair play, blameworthiness, and right and wrong, which underlie tort law concepts of negligence and contributory negligence.

¶2I. Construction Of The Facts For A Directed Verdict.

¶3The single issue before this court is whether the plaintiff was, as a matter of law, free of contributory negligence. If he was not, then the trial judge erred in granting plaintiff’s motion for a directed verdict on this issue.

¶4To avoid being contributorily negligent, plaintiff was required to exercise the same general standard of care the law uniformly requires when determining the existence, or nonexistence, of negligence. He was required to act as a reasonably prudent man would act under the same or similar circumstances. Bauman v. Complita, 66 Wn.2d 496, 403 P.2d 347 (1965); W. Prosser, Torts §§ 36, 64 (3d ed. 1964). One of the circumstances usually pertinent in intersection collision cases is whether a particular driver had the right of way and, consequently, was the “favored dri*643ver.” Massengale v. Svangren, 41 Wn.2d 758, 252 P.2d 317 (1953). The law accords a favored driver, i.e., the plaintiff in the instant case, considerable protection or a degree of immunity from liability for damages, regardless of the actions of others, unless he knew, or in the exercise of due care should have known, that a disfavored driver was not going to yield the right of way. Owens v. Kuro, 56 Wn.2d 564, 354 P.2d 696 (1960); Bellantonio v. Warner, 47 Wn.2d 550, 288 P.2d 459 (1955). Obviously the purpose of this exception is to withhold protection or immunity from liability even as to favored drivers whose conduct creates an unreasonable risk of harm to themselves or others.

¶5The issue of contributory negligence generally is for the jury to determine. See Mathers v. Stephens, 22 Wn.2d 364, 156 P.2d 227 (1945). This court has said on numerous occasions that only in rare cases is a trial court justified in withdrawing this issue from the jury. E.g., Bauman v. Complita, supra; Baxter v. Greyhound Corp., 65 Wn.2d 421, 397 P.2d 857 (1964). However, the majority holds in the instant case that the trial judge was correct in removing the issue of plaintiff’s contributory negligence from the jury’s determination. I cannot agree.

¶6When passing on the correctness of granting a motion for a directed verdict on the issue of contributory negligence, certain rules must be followed. The evidence must be interpreted most favorably to the nonmoving party, defendant here, and no discretion may be exercised as to whether the evidence of contributory negligence was sufficient to take the issue to the jury. Hansen v. Pauley, 67 Wn.2d 345, 407 P.2d 811 (1965); Trautman, Motions Testing the Sufficiency of Evidence, 42 Wash. L. Rev. 787, 797 (1967). The evidence which is most favorable to the nonmoving party must be considered even if it was not introduced by him. This court must review all the evidence to find the portions which are most favorable. Wold v. Jones, 60 Wn.2d 327, 373 P.2d 805 (1962). Under these standards, I am convinced the result reached by the majority is untenable.

¶7*644The majority construe the evidence or facts to be as presented by the defendant, i.e., that defendant stopped at the intersection and then “practically crept across the arterial” at between 4 and 7 miles per hour. This construction is not the one most favorable to defendant on the issue of plaintiff’s contributory negligence. The most favorable construction would seem to be to adopt the view asserted by plaintiff in his deposition and by the investigating officer that plaintiff was proceeding along Elm Street at 10 miles per hour and that defendant ran the stop sign at 30 miles per hour. At 10 miles per hour, plaintiff could have stopped almost instantly. If he had been paying attention to the road ahead, it is arguable plaintiff would have seen defendant rapidly approaching the intersection. If so, he should have concluded, as a reasonably prudent man would have, that defendant would fail to yield the right of way. The fact that plaintiff may not have been looking will not save him. He is charged with seeing what was there to be seen. Owens v. Kuro, supra, at 572, 354 P.2d at 701.

¶8Whether this construction of the facts is the most logical or probable one for a jury to reach is unimportant for our purposes in the instant matter. What is important is that proper selection of facts will reveal substantial evidence from which a jury could conclude that plaintiff was contributorily negligent. This being the case, the motion for a directed verdict on this issue should not have been granted. See Golub v. Mantopoli, 65 Wn.2d 361, 397 P.2d 433 (1964).

¶9If we assume, as does the majority, that defendant was traveling at between 4 and 7 miles per hour, and plaintiff was traveling at 10 miles per hour, it still does not seem possible to conclude as a matter of law that plaintiff was not contributorily negligent. In footnotes two and three, the majority sets out a computation of the distance defendant and plaintiff traveled after defendant reached the edge of the pavement on Elm Street until the collision. Defendant had by then reached a point at which the majority concludes that plaintiff should have been warned of the danger of collision. Even if we accept as uncontrovertible the as*645sertion that plaintiff could justifiably rely on his status as favored driver up to that point,5 under the majority’s computations as to stopping distances we find that while defendant was traveling the 11 feet from the edge of the pavement to the point of collision, plaintiff, at 10 miles per hour, was traveling 30 feet.

¶10The Bendix scale of tested stopping distances, accepted as authoritative in 9C Blashfield, Cyclopedia of Automobile Law & Practice § 6237, at 413 (perm. ed. 1954), indicates that a car under ordinary conditions can stop in 15.5 feet at a speed of 10 miles per hour. This distance allows for an average reaction time of three-fourth seconds, during which time the car travels 11 feet, plus 4.5 feet of required braking distance.

¶11Considering the elements of time and distance and the fact that the accident occurred on a dry, paved surface in midafternoon on a day when visibility was excellent, it is indeed difficult to understand why plaintiff traveled nearly twice the distance necessary to stop after he was put on notice that defendant was not going to yield the right of way, unless we conclude that plaintiff was contributorily negligent. It is even more difficult to hypothesize why no jury question is presented.

¶12II. Contributory Negligence Of Favored Drivers

¶13The foregoing discussion and conclusions are largely predicated upon the assumption that this court is still following its established rules concerning the standard of care which a favored driver must meet. Since deciding the case of Mondor v. Rhoades, 63 Wn.2d 159, 385 P.2d 722 (1963), this court has held that a disfavored driver who fails to yield the right of way is negligent as a matter of law unless he is deceived by the actions of the favored driver. Accord, Archibald v. Gossard, 65 Wn.2d 486, 397 P.2d 851 (1965). *646On the other hand, we have held that a favored driver is negligent if he fails to exercise the care a reasonably prudent man would exercise under the same or similar circumstances. Bauman v. Complita, supra, at 498, 403 P.2d at 348-49. See Tobias v. Rainwater, 71 Wn.2d 845, 431 P.2d 156 (1967).

¶14It is clear, however, that at least the concurring opinion written by Donworth, J., and signed by Hale, J., departs from these rules by extending the rule of Mondor v. Rhoades, supra,to make a disfavored driver not only negligent but liable if he fails to yield the right of way. This is apparent from the following statement in the concurring opinion:

There is no equivocation in the duties imposed by the legislature upon the disfavored driver at a controlled intersection. . . . His failure to comply with these duties renders him negligent as a matter of law, and liable for all damages proximately caused by his wrongful action. (Italics mine.)

¶15Unless a favored driver is deceptive in his actions (which is not the same thing as being negligent) ,6 or fails to exercise a last clear chance of avoiding an accident, the concurring judges would hold the disfavored driver liable, regardless of the favored driver’s negligence. I simply must disagree with this position.

¶16In Mondor v. Rhoades, supra,this court explicitly stated that absolute liability will not be imposed on a disfavored driver in an intersection collision without legislative sanction. See also Bennett v. Karnowsky, 24 Wn.2d 487, 166 P.2d 192 (1946). Yet, in effect, this is now proposed by the *647concurring opinion. It would remove the element of a favored driver’s negligence from intersection-collision cases altogether. This is contrary to every Washington decision which has considered the issue. E.g., Harris v. Fiore, 70 Wn.2d 357, 423 P.2d 63 (1967); Ward v. Zeugner, 64 Wn.2d 570, 392 P.2d 811 (1964). It would be both illogical and dangerous to adopt a rule that, if no last clear chance is available, a favored driver, regardless of his negligence, may recover from a disfavored driver whenever the disfavored driver is undeceived and fails to yield the right of way.

¶17I agree with the concurring judges that the rule of Martin v. Hadenfeldt, 157 Wash. 563, 289 Pac. 533 (1930),7 may not provide adequate protection for favored drivers unless their favored status is emphasized. Nonetheless, I do not believe a solution to this problem lies in crystallization of a rule which practically guarantees their recovery. In the first place, such a rule would inflict too much hardship on disfavored drivers. In the second place, it is always dangerous to attempt to establish a fixed and mechanistic standard of conduct which is to be applied in every case arising within a given category, such as intersection collisions. As pointed out by Dean Prosser, whenever such a standard has been established it “almost invariably . . . has broken down in the face of the obvious necessity of basing the standard upon the particular circumstances, the apparent risk and the actor’s opportunity to deal with it.” W. Prosser, Torts § 37, at 210 (3d ed. 1964).

¶18Despite views and efforts of the concurring judges, contributory negligence still should be a factor when deciding whether a favored driver may recover from a disfavored driver. However, the likelihood of finding contributory negligence in any given case has been sharply decreased be*648cause of additional preferment extended to favored drivers by the majority.

¶19As pointed out previously, contributory negligence of favored drivers has traditionally been measured by the reasonably prudent man test. Bauman v. Complita, 66 Wn.2d 496, 403 P.2d 347 (1965). See Robison v. Simard, 57 Wn.2d 850, 360 P.2d 153 (1961). Under this test, one element to be considered is the right of way of favored drivers. This test does not, however, regulate the weight to be placed upon, or degree of importance of, this right of way. We have used an additional rule for this. In the instant case, the majority has radically departed from what has heretofore been the rule of this court as to the importance of favored driver status in cases in which a favored driver, who has not been looking for traffic ahead, seeks to rely on his favored position after colliding with a disfavored driver.

¶20The earlier rule, briefly stated, is that a favored driver who does not look for approaching traffic may not be heard to say that he assumed disfavored drivers would yield to his right of way. In Owens v. Kuro, 56 Wn.2d 564, 572, 354 P.2d 696, 701 (1960), we stated:

Appellants urge, however, they had a right to rely on the fact that, since the light had turned amber, any oncoming vehicle would not proceed through the end of an amber light. Such contention would be meritorious had appellant driver seen the car approaching and from its actions reasonably relied upon it to stop. But the facts are not so. Appellant driver did not see the oncoming car, and therefore, could not have relied upon it to stop. One cannot merely depend on another’s obeying a traffic signal without observing the situation. (Italics mine.)

¶21In Owens, we also quoted with approval, at 573 n.5, 354 P.2d at 701 n.4, the following passage from 2 Blashfield, Cyclopedia of Automobile Law & Practice § 1028, at 303 (perm. ed. 1951):

The rule that a motorist has a right to assume that other users of the highway will not drive negligently and will obey stop signs applies only in favor of those whose conduct measures up to a standard of due care. If a *649driver does not notice a motorist approaching an intersection from the left, he cannot assert that he thought the motorist from the left would give him the right of way. (Italics mine.)

¶22It would appear that it is the intention of the majority to now overrule sub silentio the rule of Owens v. Kuro. Even though plaintiff, by his own statements, established that he did not look for approaching traffic until an instant before the accident, the majority takes the position that plaintiff had a right to assume that others, including defendant, would yield the right of way.

¶23It may be that the rule in Owensis too denigrating as to the right of way of favored drivers to be permitted to stand. If so, it should be expressly overruled. No good purpose is served by leaving in effect at the same time two contrary and irreconcilable rules of law. This is particularly pertinent because the rule adopted in Owenshas been recently cited with approval by this court. Tobias v. Rainwater, 71 Wn.2d 845, 431 P.2d 156 (1967); Bauman v. Complita, supra.

¶24It seems important to note parenthetically what to me is the basis upon which the majority and concurring judges formulated their decision concerning the weight to be placed on the status of favored drivers. In Mondor v. Rhoades, 63 Wn.2d 159, 385 P.2d 722 (1963), we recognized that a favored driver’s right of way is not absolute. Consequently, the majority could not adopt such a rule in the instant case without overruling Mondor. On the other hand, it is clear the majority are not satisfied with the status of favored drivers under the Owens v. Kuro rule, and indeed wish to make a favored driver’s right of way as strong as possible. As a result of the conflict between the desires of the majority and the limits of Mondor, this court seems to have now adopted a rule which states that the right of way of favored drivers is absolute except when one or two particularized circumstances are present (deception and last clear chance). In short, we seem to be saying that the right of way is “almost” absolute.

¶25*650Some examples may serve to illustrate my point. The majority opinion states:

The favored driver on an arterial protected by a stop sign has one of the strongest rights of way which the law allows. Certainly as strong as the one discussed in Mondor v. Rhoades . . . . (Italics mine.)

¶26Regarding the reference to Mondorby the majority, we there said, at 63 Wn.2d at 167, 385 P.2d at 727, that the principal reason we did not make a favored driver’s right of way absolute in an uncontrolled intersection was that

[rjoom must be left for the extreme case, the case where the driver on the left is able to demonstrate that the favored driver so wrongfully and negligently operated his car as to create a deception tantamount to an entrapment .... (Italics mine.)

¶27The concurring opinion in the instant case is even more direct when it says

I would abandon rules of “relative” rights of way which have developed from Martin v. Hadenfeldt, supra,and, instead, bar recovery by the favored driver in only two circumstances; [deception and last clear chance] . . . . (Italics mine.)

¶28I, too, wish to see a favored driver’s right of way given substantial protection. My quarrel is with the way in which this court has framed the rule protecting this right. A rule which focuses attention on the absoluteness of a right which is not absolute necessarily presents conceptual difficulties. Either a right is absolute or it is not absolute; it cannot be “almost” absolute any more than an individual can be “almost” married. If a right is not absolute, then in fact it is really relative.

¶29If a majority of the members of this court wish to make a favored driver’s right of way absolute, they should say so and overrule Mondor v. Rhoades, supra.If they do not, they should recognize explicitly that the right of way is relative and phrase the opinion governing this right in terms which reflect its relativity. Judging from the phrases quoted above, I do not believe this has been done.

¶30*651One final point must be mentioned. In the majority opinion, the statement is made, as mentioned above, that “[t]he favored driver on an arterial protected by a stop sign has one of the strongest rights of way which the law allows.” Two distinct meanings may be attached to this sentence. First, this sentence may mean that, in exercising due care under the circumstances, a favored driver has a right to rely heavily on his right of way. Second, it may mean that a favored driver need not exercise ordinary care under the circumstances but in fact may exercise less than ordinary care. The distinction between the two is that the former construction reflects an application of the normal rule used to determine the existence of negligence, namely, the reasonably prudent man rule (although, as I have said, the application seems to be phrased in a manner which fails to accurately reflect the relativity of the right of way), while the latter construction implies that a special rule has been created for favored drivers, one not tied to the reasonably prudent man rule. If the second interpretation is correct, then I also must dissent from this aspect of the majority opinion.

¶31Creation of special rules to govern the basic standard of care in particular classes of cases is contrary to a fundamental tenet of this court. We have consistently adhered to the view that there is but one standard of care which individuals are required to exercise, that of a reasonably prudent man under the same or similar circumstances. Anderson v. Beagle, 71 Wn.2d 641, 430 P.2d 539 (1967); Ulve v. Raymond, 51 Wn.2d 241, 317 P.2d 908 (1957).

¶32The reason for this view is obvious. Creation of different standards of care for different situations would ultimately lead to a chaotic overabundance of rules. Furthermore, and this is crucial in the instant case, additional rules are unnecessary to fully protect the rights of favored drivers. The reasonable man test by definition considers the circumstances under which an individual acts, and a favored driver is more than adequately protected if his right to rely on his right of way is stressed as a surrounding circumstance. *652Cf. Huber v. Hemrich Brewing Co., 188 Wash. 235, 62 P.2d 451 (1936).

¶33I am firmly convinced that by limiting ourselves to a general test—that of a reasonably prudent man—this court could retain the flexibility necessary to sit in judgment in future intersection-collision cases. As Mr. Justice Cardozo so aptly phrased it, “Extraordinary situations may not wisely or fairly be subjected to tests or regulations that are fitting for the commonplace or normal.” Pokora v. Wabash Ry., 292 U.S. 98, 105, 91 A.L.R. 1049 (1934). Until we are better able to predict the course of future litigation, establishment of rigid and special rules seems improvident at best.

¶34With these principles in mind, and for the reasons stated, I dissent.