Hester v. Watson

¶1Mr. and Mrs. Huey L. Hester, with Mr. Hester driving, were traveling in a southerly direction on the Dalles Military Road. When they reached its intersection *925with Washington State Primary Highway 125 (which at that particular point runs roughly east and west), they stopped at the stop sign. Mr. Hester looked to the east and saw the pickup truck being driven by Mr. Harry Watson from what seemed to Mr. Hester a considerable distance away;1 he looked west, and there was nothing coming from that direction; he then made a right turn onto Highway 125 and proceeded westerly, accelerating his speed. Some 225 feet2 from where it had come onto Highway 125, the Hester car was rear-ended by the Watson car. The cars locked bumpers, and the Hester car was pushed another 330 feet back and forth across the highway, and then off the south side and into a field.

¶2The Hesters brought this action to recover for the injuries they sustained and the damage to their car. Mr. Watson cross-complained, asking for damages for the injuries he sustained and the damage to his car. The jury verdict denied recovery to either party, which was tantamount to a determination that both parties were negligent. The Hesters have appealed from the judgment of dismissal against them; Mr. Watson did not cross-appeal.

¶3The jury’s determinations of negligence on the part of both parties may have been correct; however, it is axiomatic that a party is entitled to have the court instruct the jury on his theory of the case if there is substantial evidence to sustain it. Kelsey v. Pollock, 59 Wn.2d 796, 797, 370 P.2d 598 (1962). The issues on this appeal become: Did the trial court fail to properly instruct the jury on the Hesters’ theories of the case; i.e., no negligence because the Hesters’ car was a preceding car and, if negligent, still entitled to recover on the basis that Mr. Watson had the last clear chance to avoid the collision?

¶4*926The trial court instructed the jury on the theory of the defendant Watson that this was an intersection case; and it. refused to instruct on the Hesters’ theory that it was a preceding and following-car situation. It also refused to instruct on either phase of the last clear chance doctrine.

¶5The trial court treated the negligence of Mr. Hester as a disfavored driver entering an intersection as a jury question on the basis of the then3 recognized rule:

Automobiles which collide as a result of the disfavored driver’s having failed to leave a fair margin of safety, are simultaneously approaching the intersection even if the accident occurred outside the bounds of the intersection-(Instruction No. 17.)

¶6We have recognized that if a disfavored driver enters an. intersection at such a time and place as to produce an. emergency situation in which the favored driver is unable, in the exercise of reasonable skill and judgment, to avoid a collision, then the disfavored driver’s failure to yield the-right of way at the intersection would constitute negligence per se, even though the resultant collision occurred outside-the bounds, i.e., the physical limits, of the intersection. Petersavage v. Bock, 72 Wn.2d 1, 431 P.2d 603 (1967), Nelson v. Molina, 53 Wn.2d 412, 334 P.2d 170 (1959).

¶7The question presented by this case and by the two cases just cited is: How far beyond the intersection does a driver-entering an arterial at an intersection have to travel on the *927arterial, and for how long, before a jury is entitled to find him to be a preceding driver, if his car is rear-ended by a car that was already on the arterial?

¶8Petersavage v. Bock, supra,holds, as a matter of law, that a driver who has entered upon an arterial at an intersection and has been there only 2 or 3 seconds, and traveled less than 50 feet beyond the intersection, has not been on the arterial a sufficient time or distance to have attained any status other than that of a disfavored driver entering an intersection; and, as such, he cannot be considered a preceding driver when his car is rear-ended by a car already on the arterial; consequently, he was not entitled to have an instruction given on the duties of a driver of a following or overtaking car.

¶9Nelson v. Molina, supra,holds that where there is evidence that the driver entering an arterial at an intersection has been on the arterial 7 or 8 seconds and traveled a hundred feet thereon his negligence as a disfavored driver ceases to be a matter of law, and that the jury should be permitted to determine whether he was a disfavored driver entering an intersection, or whether he was a preceding driver when rear-ended by a car already on the arterial. Consequently, Molina was entitled to the benefit of a following, or passing-car instruction, or both. In short, it was a question which the jury could determine either way.

¶10Had the jury ignored the Hesters’ testimony and considered only Mr. Watson’s own testimony, the testimony of the investigating officer as to what Mr. Watson told him, or the computations of Mr. Watson’s own witness, the jury could have found therefrom that Mr. Watson was the driver of a following car and that the collision was proximately caused by his negligence as such.

¶11Mr. Watson’s Testimony: He testified that he was about half way between the railroad track and the intersection (more than 500 feet east of the intersection) when he saw the Hester car approaching the stop sign. He then looked Into his rear-view mirror and when he looked ahead again ■the Hester car was right in front of him and the collision *928was unavoidable.4 The collision occurred some 225 feet west of the stop sign. By his own admission he traveled more than 725 feet (better than 8.5 seconds at his estimated speed of 55 miles an hour) without paying any attention to traffic conditions directly ahead of him. This a jury might well regard as negligence proximately causing the collision.

¶12Mr. Watson’s Statement to the Investigating Officer: State Patrol Trooper, Kenneth A. Graves, testified that Mr. Watson told him that he (Watson) was approximately 100 feet from the intersection when the Hesters “pulled out in front of him.”

¶13This meant that Mr. Watson had the Hesters in sight while he was traveling at least 325 feet, while they traveled 225 feet during a time estimated at 7.6 seconds. The jury could certainly conclude from such testimony that this was a following-car situation.

¶14The Computations of Mr. Watson’s Witness: One computation was that it took the Hesters 7.6 seconds to travel 225 feet from the stop sign, accelerating from a stop to 40 miles an hour. Another computation indicated that in the same time Mr. Watson, traveling at 55 miles an hour, traveled 615 feet, which would place him 390 feet east of the stop sign when the Hesters were starting from the stop sign.

¶15Under this or either of the two preceding versions as to where Mr. Watson was when the Hesters entered upon the arterial, a jury could find that he was a following driver for distances varying from 725 feet to 325 feet, and for a minimum of 7.6 seconds.5

¶16*929The court’s failure to instruct6 on the theory that this was a following-car situation—there being substantial evidence to support each theory—was reversible error. Harris v. Fiore, 70 Wn.2d 357, 423 P.2d 63 (1967); Carraway v. Johnson, 63 Wn.2d 212, 386 P.2d 420 (1963); Kelsey v. Pollock, 59 Wn.2d 796, 370 P.2d 598 (1962); Lidel v. Kelly, 52 Wn.2d 238, 324 P.2d 817 (1958); DeKoning v. Williams, 47 Wn.2d 139, 286 P.2d 694 (1955).

¶17As we said in Harris v. Fiore, supra,“If a given set of facts supports two or more theories of law, the court must instruct on all the theories to which the facts pertain.”

¶18Counsel for Watson seek to explain the failure to give an instruction on the duties of a driver of a following car by pointing out that an instruction was given setting out the duties of a driver overtaking and passing another car upon the highway.7 It is also pointed out that in Nelson v. Mo*930lina, supra,the two theories presented to the jury were that Molina was either a disfavored driver “entering an intersection,” or had become the driver of a preceding car and was entitled to an instruction on the duties of an “overtaking and passing driver.”

¶19In that case, Nelson had attempted to pass Molina after the latter had come onto the arterial at the intersection, but seeing an oncoming car in the passing lane he had swung back behind Molina to avoid a head-on collision and had rear-ended Molina. The overtaking and passing instruction was appropriate in that situation.

¶20The present case, however, is not an overtaking and passing case. Watson made no attempt to pass the Hester car. The following-car instruction was appropriate and necessary to present the Hesters’ theory of the case, and should have been given.

¶21The Hesters also urge, as previously indicated, that their requested instructions on both phases of last clear chance should have been given, even if the jury found that they were negligent. This seems, at first glance, like a classic last clear chance case: If the Hesters were negligent in driving their car onto and proceeding down the highway ahead of Mr. Watson, he could have turned into the passing lane and avoided hitting them during the time it took the Hesters to travel 225 feet on Highway 125—-a minimum of 7.6 seconds —and while he was traveling between 325 and 725 feet, based on his own testimony and out of court statements.

¶22The difficulty in determining the applicability of last clear chance to the situation here is Mr. Watson’s testimony that, after he saw the Hester car when he was more than 500 feet from the intersection, he did not see it again until immediately before the collision when it was unavoidable.

¶23This makes the application of the first phase of the last clear chance (i.e., where a defendant did see a plaintiff in a *931position of peril),8 dependent on there being evidence from which the jury could find that Mr. Watson, despite his testimony to the contrary, did see the Hesters in time to avoid the collision.

¶24There is such evidence, and it comes from two sources— the Hesters and the state patrol trooper who investigated the collision. Mrs. Hester testified that following the collision Mr. Watson said, “I am sorry, it was my fault. Something went wrong with my arm.” Mr. Hester testified that Mr. Watson said he was sorry, that it was his fault, something struck him in the arm.

¶25(While Mr. Watson denied making these statements, the jury could have believed the Hesters and concluded therefrom that he did see their car in time to take some evasive action.)

¶26We quote an excerpt from the testimony of State Patrol Trooper Kenneth E. Graves:

Q. And then did you talk to Mr. Watson about how the accident occurred? A. Yes. Q. What did he tell you at that time? A. Well, he advised me that he was southbound[9] on 125 toward Milton-Freewater, and that he saw this car approaching the stop sign, and that he glanced in his mirror, and, when he glanced back, he was approximately 100 feet from this particular intersection and the vehicle pulled out in front of him. Q. Did he make any statement concerning whether or not he could have avoided the accident? A. He said that he attempted to avoid it but that he couldn’t. Q. Was anything else said along that line by Mr. Watson? A. No. I asked him if there was any northbound traffic, and he advised me no. Q. Did he say anything to you which would tend to indicate that he felt he might have been able to avoid the accident? A. He just stated that he attempted to avoid it but he couldn’t.

¶27*932(This would indicate that Mr. Watson had the Hesters in view from the time they came onto the highway. He traveled 325 feet, while they traveled 225 in 7.6 seconds, and he neither turned into the other lane nor put on his brakes. The jury does not have to believe under these circumstances that he could not have avoided the accident. Mr. Watson did not deny that this conversation occurred.)

¶28It was a question for the jury as to whether Mr. Watson did see the Hesters’ car in time to avoid the collision, and the first phase of last clear chance should have been submitted to the jury.

¶29The second phase of last clear chance applies where a defendant actually did not see the perilous situation but should have (and that Mr. Watson should have seen the Hesters in a position of peril, there is no doubt). For a plaintiff to recover under this phase, his negligence must have terminated, or culminated in a position of peril from which he could not, by the exercise of reasonable care, have extricated himself (see Patterson v. Krogh, supra).

¶30It would appear that if the Hesters were negligent it persisted until the time of collision, and that they might have extricated themselves by driving off onto the shoulder of the road, although they were oblivious of the danger.

¶31Hence, we conclude that the trial court did not err in refusing to instruct on the second phase of last clear chance.

¶32We would make it clear that we are not holding that the trial court erred in submitting this to the jury as an intersection case, but that if the Hesters were negligent the applicability of the first phase of last clear chance was a jury question, but not the second phase.

¶33We further hold that an instruction or instructions relative to the duties of the driver of a following car should have been given to get the Hesters’ theory of the case before the jury; and that the instruction on overtaking and passing was not sufficient for that purpose.

¶34The judgment of dismissal appealed from is set aside, and the cause is remanded for a new trial on the issues raised by the complaint of the Hesters.

¶35*933Finley, C. J., Hunter, Hamilton, and McGovern, JJ., concur.