Sandberg v. SpoelstraSandberg v. Spoelstra
- Reporters:
- , , ,
- Before:
- Hill
The driver of plaintiff’s loaded logging truck and trailer, traveling east between Forks and Port Angeles, made a left turn off the highway in order to park at the Lake Sutherland store while he had coffee and discussed with another of plaintiff’s drivers a possible emergency with reference to the condition of the latter’s load. The surfaced part of the highway at that point was nineteen feet and nine inches wide and was divided into east and west bound traffic lanes by a center stripe. Some 375 feet east of where the truck and trailer were parked there was a curve in the road which cut off the view beyond.
Upon returning to the highway, plaintiff’s truck became involved in a collision with a westbound logging truck loaded with its own trailer, belonging to the defendants. Coming around the curve in the westbound lane, the defendants’ driver saw the plaintiff’s “rig” and applied his brakes; his truck skidded down the highway and nosed into a bank alongside the road; the truck body swung crosswise of the road and hit the bumper and radiator of the plaintiff’s truck. At the point and time of impact the plaintiff’s truck was entirely in its right, or the eastbound, lane of the highway, but it will be assumed that the trailer or a portion of it was approximately a foot and a half on the wrong side of the center line.
The principal issue on this appeal is whether the negligence of the plaintiff’s driver was a proximate cause of the collision. Before taking up that issue, we would dispose of one ground of negligence urged by the defendants and apparently relied upon to some extent by the trial court. We are satisfied that the driver of the plaintiff’s truck was not negligent in making a left turn off the highway for the purpose of parking at the Lake Sutherland store. Whether he was required to do so by an emergency, is entirely immaterial. The statute relied upon by the defendants is
However, we held in the
Onkels
case—and adhered to the rule in
Glick v. Ropes
(1943), 18 Wn. (2d) 260,
Plaintiff’s driver had a right to take the truck and trailer back onto the highway from the parking place on the private driveway, but in leaving such parking place it was his duty: (1) to bring his vehicle to a full stop at a point where, before entering the highway, he could see traffic approaching from either direction; (2) to look in both directions and observe traffic conditions; (3) to yield the right of way to all vehicles upon the highway; and (4) to adopt such additional precautions as may have been necessary to assure a reasonable margin of safety under the existing circumstances. See
The testimony was widely divergent. Plaintiff’s driver testified that the defendants’ truck did not come into view until the plaintiff’s truck was completely over the center line and in the eastbound lane. The defendants’ driver testified that, when he rounded the curve and first saw the plaintiff’s truck and trailer, it was 333 feet away and had not yet started across the highway. He testified that it was stopped but conceded that it might have been rolling slightly, and that almost immediately thereafter it “tried to beat me across the road”; whereupon he applied his brakes, with the results hereinbefore described.
We are handicapped in any review of the defendants’ driver’s testimony because we do not have the advantage, which the trial court had, of a drawing on a blackboard on which the witness illustrated his testimony by reference to points “a”, “b”, “c”, “p”, and “x”. It may well be that the drawing marked “For Illustration Only” which appears in the respondents’ .(defendants’) brief is an attempted
The trial court found that the negligence in the operation of the plaintiff’s truck and trailer was as follows:
“That the Plaintiff caused and contributed to said accident by having parked its loaded vehicle, 60 feet in length, in a parking area immediately ahead of a blind curve and under no conditions of emergency, knowing at the time of so parking that other vehicles would be coming toward it along the highway and knowing that it must block the highway for a substantial time upon its return to its easterly route and that other vehicles travelling westerly and approaching it and having the right-of-way, might be unable to avoid collision for want of timely warning because of the blind curve; and furthermore, that although another driver and agent of the plaintiff was present at said store and parking area at all times and available to have watched for oncoming traffic and signalled the driver, Lloyd Harris, when it was safe to. cross and re-enter said highway, no precaution of observation of oncoming traffic was taken by the plaintiff or either driver or agent of the plaintiff although the exercise of any such precaution might have served to prevent said accident by giving the driver Harris notice of the defendants’ oncoming vehicle or of other vehicles approaching around said blind curve.”
Considered apart from the other findings, this would seem to indicate that it was the trial court’s view that the parking place in front of the Lake Sutherland store was so close to the blind curve that a loaded truck and trailer sixty feet in length would block the westbound traffic lane for such a substantial period of time upon re-entering the highway to pursue an easterly course that other vehicles, traveling westerly around the curve, might be unable to avoid a collision for want of timely warning, and. that it would be negligence to fail to use a flagman for the purposes indicated in the finding.
A vehicle traveling forty miles on hour (the truck limit) would.travel 583 feet in ten seconds, and if traveling fifty miles an hour (the maximum permitted any vehicle) would travel 733 feet in the same time. Plaintiff’s driver testified that he had reached a speed of five miles an hour when he stopped because he saw that the defendants’ truck was
We can agree that plaintiff’s driver was negligent in starting back onto the highway under the conditions there existing, but the question is that of proximate cause. Under the circumstances described, a cause of the collision was the position of the defendants’ truck on the highway. The trial court found that the defendants’ truck was in that position because their driver was operating the truck at a rate of speed in excess of what was safe considering the place and the circumstances, and that such negligence was a proximate cause of the collision.
However, the trial court, accepting the testimony of the defendants’ driver which we have heretofore outlined, also made the following finding, from which there naturally follows a conclusion of contributory negligence on the part of plaintiff’s driver:
“That as the defendants’ vehicle approached said store and rounded said curve the plaintiff’s vehicle crossed in front of the defendants’ vehicle headed in an easterly direction; that the defendants’ vehicle, upon seeing the crossing truck and trailer, attempted to stop.”
If the plaintiff’s driver’s negligence, involving, among other things, a failure to yield the right of way, caused the defendants’ driver to be placed in a position of peril and to lose control of his truck in an effort to extricate himself
While some members of this court are skeptical concerning the testimony upon which this finding is based, the trial court had the advantage not only of observing the witness but also of an explanatory illustration on a blackboard, and we are not in a position to say that the evidence preponderates against the finding; hence, on the plaintiff’s appeal, we affirm the judgment of dismissal entered against him.
The basis of the defendants’ cross-appeal is that their driver was confronted by an emergency created by the plaintiff’s driver’s attempt to cross in front of him.
It is apparent that, if the trial court’s finding that the defendants’ driver’s speed constituted negligence under the circumstances then and there existing, is supported by the evidence—and we are satisfied that it is—the doctrine of sudden emergency cannot be invoked by the defendants in the present case, because the emergency was brought about, in part at least, by the negligence of their driver.
The emergency doctrine, stated concisely, is:
“When one is confronted with a sudden peril requiring instinctive action, he is not, in determining his course of action, held to the exercise of the same degree of care as when he has time for reflection.”' 1, part 2, Blashfield, Cyclopedia of Automobile Law & Practice (Perm, ed.) 538,- § 668 (quoted and adopted by this court in American Products Co. v. Villwock (1941), 7 Wn. (2d) 246, 256,109 P. (2d) 570 , 132 A. L. R. 1010).
It is equally well established that the doctrine cannot be invoked by one whose own negligence brought about, in whole or in part, the emergency with which he is confronted.
Anderson v. Davis
(1922),
“But this rule does not apply where a person’s own negligence has put him in a position of danger. If he is in the place of danger as a result of his own negligence, he cannot invoke this rule to escape the consequences of such negligence. In order to bring him within the rule, the emergency which required him to act must not have been brought about, in whole or in part, by his own fault.”
Or, as stated recently by the same court in Trudeau v. Sina Contracting Co., supra (p. 496) :
“The so-called emergency rule is but a special application of the general standard of reasonable care. When given, it requires a jury to consider the fact of sudden peril as a circumstance in determining the reasonableness of a person’s response thereto. The rule can only apply if it has first been determined that there existed a real peril and that the negligence of the party seeking to invoke it was not a contributing cause. Prosser, Torts, § 37; Restatement, Torts, § 296.”
And in
Simonson v. Huff
(1923),
The benefit of the emergency rule is applicable only to conduct
after
a person has been placed in a position of peril. It is not here contended that any act of the defendants’ driver
after
he was in a position of peril constituted negligence. The trial court found, in effect, that his excessive speed under the circumstances was partially responsible for his position of peril which constituted the
Since the judgment is affirmed in its entirety, neither party having prevailed on appeal, no costs will be allowed except that, inasmuch as the statement of facts was necessary to both the appeal and the cross-appeal, the cross-appellants shall pay one half of that cost.
Hamley, C. J., Mallery, Weaver, and Rosellini, JJ., concur.
August 4, 1955. Petition for rehearing denied.