Vanderhoff v. FitzgeraldVanderhoff v. Fitzgerald
- Reporters:
- , ,
- Before:
- Denney
About 6; 15 p.m. on January 5, 1962, an automobile being driven by plaintiff Marian M. Vanderhoff was struck from the rear by an automobile driven by defendant James F. Fitzgerald, a few car lengths inside the west portal of the tunnel just west of the Lake Washington
Mr. Fitzgerald testified that he was following the flow of traffic and was driving about 50 feet behind the Vanderhoff vehicle at a speed of 35 to 40 miles per hour; that he noticed the cars ahead were beginning to stop; and that the car in front had stopped in the tunnel. He applied his brakes in a normal manner. The brakes took hold but the car did not stop, instead it “skied literally as though I was on ice.” Mr. Fitzgerald took his foot off the brake for an instant and then reapplied it in order to get traction. The tires then took hold but not in time to avoid a collision. Dorothy Fitzgerald was a passenger in her husband’s car and testified to the same effect, although she thought her husband’s estimate of speed was too high. The maximum speed limit at the point of collision was 40 miles per hour.
Mr. Fitzgerald further testified that he examined the conditions of the road immediately after the accident and observed that water cascaded off the face of the tunnel portal and flowed in a sheet across the road to a drain on the north side of the road. He said that immediately inside the tunnel, where water had been carried by the tires of vehicles, the roadway appeared to be covered by an oil film creating an extremely slippery condition.
Mrs. Vanderhoff was taken to Providence Hospital after the accident. She sustained injuries to her mouth, teeth, and a cervical and dorsal sprain. A urinalysis disclosed red blood cells which continued to appear on subsequent examinations so her attending physician, Dr. Sauntry, referred her to an internist, Dr. Kohler. He conducted further exam
The trial judge directed a verdict against defendants Fitzgerald on the issue of liability and submitted the question of damages to a jury which rendered a verdict against defendants in the sum of $10,000. Judgment was entered on the verdict. Defendants Fitzgerald appeal. 1
We are committed to the doctrine that where the driver of a vehicle is following another vehicle, the primary duty of avoiding a collision rests upon the following driver and in the absence of an emergency or unusual conditions, the following driver is negligent if he runs into the car ahead.
Tackett v. Milburn,
36 Wn.2d 349, 218 P.2d 298 (1950);
Miller v. Cody,
41 Wn.2d 775, 252 P.2d 303 (1953);
Flaks v. McCurdy,
64 Wn.2d 49, 390 P.2d 545 (1964);
Izett v. Walker,
67 Wn.2d 903, 410 P.2d 802 (1966);
Felder v. Tacoma,
68 Wn.2d 726, 415 P.2d 496 (1966). While the following driver has the primary duty of avoiding an accident he is not necessarily guilty of negligence as a matter of law simply because he collides with the vehicle in front of him.
James v. Niebuhr,
63 Wn.2d 800, 389 P.2d
Appellants contend that the evidence made their liability a fact question for the jury and that the trial court erroneously found them liable as a matter of law. We agree. The extremely slippery condition of the roadway, as described by appellants, would justify a finding that an unusual condition existed which prevented appellants from stopping in the exercise of reasonable care before striking respondents’ vehicle. Mr. Fitzgerald testified that the brakes on his vehicle were in good operating condition, his tires were in excellent condition and that if he had secured normal traction on the wet pavement he could have stopped before striking respondents’ vehicle. It was for the jury to determine whether or not this was an unusual condition which absolved appellants from negligence in striking respondents’ car. Flaks v. McCurdy, supra; Rickert v. Geppert, 64 Wn.2d 350, 391 P.2d 964 (1964).
The trial court was of the opinion that speed and driving too close were the causes of the collision and that Mr. Fitzgerald should have driven in such a manner as to be able to stop on the wet, slippery pavement. Reasonable minds could differ on whether or not one driving with the flow of heavy traffic at 35 to 40 miles per hour on a wet pavement 50 feet from the preceding car was negligent, particularly when the driver asserts he could stop his car under normal circumstances under such conditions.
Because of appellants’ testimony relative to the unusually slippery condition of the roadway, it was error to resolve the issue of liability as a matter of law.
In view of the fact that the case is being remanded for a new trial, appellants’ other assignments of error will be discussed.
It is true that where there is evidence of injuries or loss resulting from various causes, for some of which a defendant is not liable, there must be proof from which the jury can determine the amount of injury or loss caused by the defendant. Wappenstein v. Schrepel, 19 Wn.2d 371, 142, P.2d 897 (1943). However, the evidence here permits the jury to find that all the expenses were made necessary by the accident.
Granting that there was sufficient evidence to warrant a finding that all expenses might be attributed to the accident, appellant contends that a cautionary instruction nevertheless should have been given. Whether or not the bladder cancer had any causal connection with the collision was one of the principal issues in the case. A substantial portion of the record deals with testimony on this subject.
Appellants next contend that error was committed in allowing Dr. Sauntry to testify that Dr. Kohler had initially advised him that the presence of blood cells in the urine was caused by a disease known as lupus erythematosis. Dr. Kohler was later called as a witness and testified at length on his diagnosis. We find, therefore, no prejudice in the admission of the testimony of Dr. Sauntry, even though such may have contained hearsay. Appellants further contend that Dr. Kohler eventually discarded the diagnosis of lupus erythematosis as incorrect and thus made Dr. Sauntry’s opinion baseless and of no effect. Dr. Sauntry’s opinion was based on a number of considerations including initial observation and treatment. His reliance on any particular factor was for the jury to consider in determining the weight to be given his testimony.
Appellants also attacked Dr. Sauntry’s qualifications to express an opinion on acceleration of cancer and its cause. Dr. Sauntry displayed some modesty in estimating his own qualifications as a cancer expert, but he is a licensed physician with considerable experience in cancer research and he displayed familiarity with the disease. He was an attending physician. He based his opinion on history, his examination of the patient, hospital reports, reports of consulting physicians and laboratory reports. We find no error in’ permitting him to express ah opinion regarding Mrs. Vanderhoff’s condition and its cause.
Finley, C. J., Donworth, Hamilton, and Neill, JJ., concur.
November 21, 1967. Petition for rehearing denied.