Evans, J.
Defendants in this automobile accident case appeal from an order granting a new trial for failure to give one of plaintiffs’ proposed instructions.
Plaintiffs’ automobile, being driven by plaintiffs’ son Bob Braden, with his mother as a passenger, was traveling east on Branch Road, an arterial highway in Yakima County. Simultaneously approaching Branch Road, traveling south on Barkes Road, was a pickup truck being driven by defendant Howard Rees, an employee of defendant Yakima Implement Company. Both drivers were familiar with the intersection, knew Rees was required to stop at Branch Road and that Rees’ vision to the west at the stop sign was partially obstructed by a board fence on the west side of Barkes Road. Bob Braden testified he noticed the Rees vehicle a substantial distance before it reached the intersection and observed it slow as if to stop. Apparently he could see the top of the cab which extended above the fence. Mrs. Braden also testified that she noticed the Rees vehicle as it rolled up to the stop sign. At this point the testimony is in conflict. Mr. Rees testified that he stopped his vehicle with the front end approximately 7 feet beyond the stop sign. Not being able to see to the west because of the fence and a telephone pole he pulled ahead another 4 feet and stopped again where he could see west on Branch Road. At that time he saw the Braden vehicle approaching from the west “quite fast, I would say 80 miles an hour.” He followed its progress' as it started to weave, go out of control and crash into the ditch on the south side of Branch Road. He testified that at no time was he on the traveled portion of Branch Road and did nothing to cause the Braden vehicle to go out of control.
On the other hand, it was the testimony of Bob Braden and Mrs. Braden that Bob was driving 50 miles per hour
approaching the intersection and was approximately 200 feet from the intersection when they observed the Rees vehicle where the stop sign is located. Their first hint of danger was when the Rees vehicle rolled past the stop sign. It then accelerated onto Branch Road, paused at the center line and then crossed over into the east-bound lane, causing Bob Braden to swerve to the right to avoid colliding with the Rees vehicle.
Plaintiffs’ proposed instruction 9 which the trial court determined should have been given reads as follows:
You are instructed that the excessive speed of a car, if any, is not the proximate cause of damage if the driver of such car was where he had a right to be and the driver would not have had sufficient time to avoid the collision had he been driving at a lawful speed.
Defendants contend that the rule of law expressed in the proposed instruction is adequately covered by other general instructions given by the court. These general instructions are set forth in the footnote below.
The trial court
found otherwise and held that by refusing to give plaintiffs’ proposed instruction plaintiffs were prevented from arguing a substantial part of their theory of the case.
In determining the scope of review where a new trial has been granted, the appellate court must ascertain the reason given by the trial court. If the reason given is predicated upon an issue of law, the appellate court reviews for error only, not for abuse of discretion.
Detrick v. Garretson Packing Co.,
73 Wn.2d 804, 440 P.2d 834 (1968). As stated in
Johnson v. Howard,
45 Wn.2d 433, 436, 275 P.2d 736 (1954):
We start with the recognized principle that an order granting or denying a new trial is not to be reversed, except for an abuse of discretion.
Huntington v. Clallam Grain Co.,
175 Wash. 310, 27 P. (2d) 583. This principle is subject to the limitation that, to the extent that such an order is predicated upon rulings as to the law, such as those involving the admissibility of evidence or the correctness of an instruction, no element of discretion is involved.
Grant v. Huschke,
70 Wash. 174, 126 Pac. 416; . . .
Hayes v. Sears, Roebuck & Co.,
34 Wn. (2d) 666, 209 P. (2d) 468.
The trial court determined as a matter of law that plaintiffs were entitled to have their proposed instruction 9 given. Thus we review for error of law, not abuse of discretion.
In determining that the facts of the present case required the giving of plaintiffs’ proposed instruction, the court relied upon
Bailey v. Carver,
51 Wn.2d 416, 319 P.2d 821 (1957), the facts of which are set forth in an earlier appeal in
Bailey v. Carver,
47 Wn.2d 153, 286 P.2d 680 (1955). In
Bailey
the defendant testified that as he approached an arterial highway traveling east he stopped a short distance
from the intersection at a stop sign. Being unable to see traffic approaching on the highway from the north because of a high bank he pulled into the intersection, at which time he saw plaintiff’s car approximately 50 feet distant approaching from the north at a speed he testified was about 15 miles per hour above the maximum speed limit Being of the opinion he could not escape a collision with plaintiff’s car, he lay down in the front seat and awaited the inevitable collision, which occurred in the lane in which plaintiff was traveling. The trial court refused to give an instruction proposed by plaintiffs which was identical to plaintiffs’ proposed instruction in the present case. The Supreme Court, in holding that this was reversible error, stated:
Clearly, under appellant’s theory of the case and under the law as announced in the first appeal, appellant’s
proposed
instruction No. 17 should have been given, 'and the trial court erred in failing to do so.
Bailey v. Carver,
51 Wn.2d 416 at 420, cited with approval in
Bohnsack v. Kirkham,
72 Wn.2d 183, 195, 432 P.2d 554 (1967).
A consideration of both the factual pattern and the instructions given in
Bailey
leads us to the conclusion that there are no material distinctions between
Bailey
and the instant case. The court ruled in
Bailey
that it is not enough to instruct that excessive speed is contributory negligence and to generally define proximate cause. Nor does an instruction that plaintiff has a right to assume the roadway is clear suffice. Rather, the jury must be instructed in effect that excessive speed of the favored driver is not a proximate cause if the accident could not have been avoided had he been driving at a lawful speed. While “pinpointed” instructions are to be avoided, giving an instruction on the party’s theory of the case is required provided there is evidence to support it.
Sonnenberg v.
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Evans, J.
Defendants in this automobile accident case appeal from an order granting a new trial for failure to give one of plaintiffs’ proposed instructions.
Plaintiffs’ automobile, being driven by plaintiffs’ son Bob Braden, with his mother as a passenger, was traveling east on Branch Road, an arterial highway in Yakima County. Simultaneously approaching Branch Road, traveling south on Barkes Road, was a pickup truck being driven by defendant Howard Rees, an employee of defendant Yakima Implement Company. Both drivers were familiar with the intersection, knew Rees was required to stop at Branch Road and that Rees’ vision to the west at the stop sign was partially obstructed by a board fence on the west side of Barkes Road. Bob Braden testified he noticed the Rees vehicle a substantial distance before it reached the intersection and observed it slow as if to stop. Apparently he could see the top of the cab which extended above the fence. Mrs. Braden also testified that she noticed the Rees vehicle as it rolled up to the stop sign. At this point the testimony is in conflict. Mr. Rees testified that he stopped his vehicle with the front end approximately 7 feet beyond the stop sign. Not being able to see to the west because of the fence and a telephone pole he pulled ahead another 4 feet and stopped again where he could see west on Branch Road. At that time he saw the Braden vehicle approaching from the west “quite fast, I would say 80 miles an hour.” He followed its progress' as it started to weave, go out of control and crash into the ditch on the south side of Branch Road. He testified that at no time was he on the traveled portion of Branch Road and did nothing to cause the Braden vehicle to go out of control.
On the other hand, it was the testimony of Bob Braden and Mrs. Braden that Bob was driving 50 miles per hour
approaching the intersection and was approximately 200 feet from the intersection when they observed the Rees vehicle where the stop sign is located. Their first hint of danger was when the Rees vehicle rolled past the stop sign. It then accelerated onto Branch Road, paused at the center line and then crossed over into the east-bound lane, causing Bob Braden to swerve to the right to avoid colliding with the Rees vehicle.
Plaintiffs’ proposed instruction 9 which the trial court determined should have been given reads as follows:
You are instructed that the excessive speed of a car, if any, is not the proximate cause of damage if the driver of such car was where he had a right to be and the driver would not have had sufficient time to avoid the collision had he been driving at a lawful speed.
Defendants contend that the rule of law expressed in the proposed instruction is adequately covered by other general instructions given by the court. These general instructions are set forth in the footnote below.
The trial court
found otherwise and held that by refusing to give plaintiffs’ proposed instruction plaintiffs were prevented from arguing a substantial part of their theory of the case.
In determining the scope of review where a new trial has been granted, the appellate court must ascertain the reason given by the trial court. If the reason given is predicated upon an issue of law, the appellate court reviews for error only, not for abuse of discretion.
Detrick v. Garretson Packing Co.,
73 Wn.2d 804, 440 P.2d 834 (1968). As stated in
Johnson v. Howard,
45 Wn.2d 433, 436, 275 P.2d 736 (1954):
We start with the recognized principle that an order granting or denying a new trial is not to be reversed, except for an abuse of discretion.
Huntington v. Clallam Grain Co.,
175 Wash. 310, 27 P. (2d) 583. This principle is subject to the limitation that, to the extent that such an order is predicated upon rulings as to the law, such as those involving the admissibility of evidence or the correctness of an instruction, no element of discretion is involved.
Grant v. Huschke,
70 Wash. 174, 126 Pac. 416; . . .
Hayes v. Sears, Roebuck & Co.,
34 Wn. (2d) 666, 209 P. (2d) 468.
The trial court determined as a matter of law that plaintiffs were entitled to have their proposed instruction 9 given. Thus we review for error of law, not abuse of discretion.
In determining that the facts of the present case required the giving of plaintiffs’ proposed instruction, the court relied upon
Bailey v. Carver,
51 Wn.2d 416, 319 P.2d 821 (1957), the facts of which are set forth in an earlier appeal in
Bailey v. Carver,
47 Wn.2d 153, 286 P.2d 680 (1955). In
Bailey
the defendant testified that as he approached an arterial highway traveling east he stopped a short distance
from the intersection at a stop sign. Being unable to see traffic approaching on the highway from the north because of a high bank he pulled into the intersection, at which time he saw plaintiff’s car approximately 50 feet distant approaching from the north at a speed he testified was about 15 miles per hour above the maximum speed limit Being of the opinion he could not escape a collision with plaintiff’s car, he lay down in the front seat and awaited the inevitable collision, which occurred in the lane in which plaintiff was traveling. The trial court refused to give an instruction proposed by plaintiffs which was identical to plaintiffs’ proposed instruction in the present case. The Supreme Court, in holding that this was reversible error, stated:
Clearly, under appellant’s theory of the case and under the law as announced in the first appeal, appellant’s
proposed
instruction No. 17 should have been given, 'and the trial court erred in failing to do so.
Bailey v. Carver,
51 Wn.2d 416 at 420, cited with approval in
Bohnsack v. Kirkham,
72 Wn.2d 183, 195, 432 P.2d 554 (1967).
A consideration of both the factual pattern and the instructions given in
Bailey
leads us to the conclusion that there are no material distinctions between
Bailey
and the instant case. The court ruled in
Bailey
that it is not enough to instruct that excessive speed is contributory negligence and to generally define proximate cause. Nor does an instruction that plaintiff has a right to assume the roadway is clear suffice. Rather, the jury must be instructed in effect that excessive speed of the favored driver is not a proximate cause if the accident could not have been avoided had he been driving at a lawful speed. While “pinpointed” instructions are to be avoided, giving an instruction on the party’s theory of the case is required provided there is evidence to support it.
Sonnenberg v. Remsing,
65 Wn.2d 553, 398 P.2d 728 (1965),
Owens v. Seattle,
49 Wn.2d 187, 299 P.2d 560, 61 A.L.R.2d 417 (1956). There is evidence to support plaintiffs’ theory, and the general instructions as
given do not encompass the concept expressed in plaintiffs’ proposed instruction. As stated by the trial court in granting plaintiffs’ motion for a new trial:
The proposed instruction, which is an exact quote from the
Bailey
case, imposes a
limitation
upon the jury as to what they can consider in determining whether or not the plaintiff’s contributory negligence was the proximate cause, or a proximate cause, of the plaintiff’s injury. The instructions as given by this court properly set out that the plaintiff could possibly be contributorily negligent due to excessive speed and then instructs the jury that they should find for the defendant if they find that plaintiff’s contributory negligence was a proximate cause of plaintiff’s own injury. However, nowhere in the instructions did the court indicate to the jury that there was a limitation upon them, as a matter of law, in respect to the excessive speed, if 'any, of the plaintiff as a proximate cause of the injury. As instructed, the jury in this case could well have found from the evidence that there may have been some excessive speed on the part of the plaintiff, particularly in view of the “appropriate reduced speed at the intersection” instruction, this being a failure to use ordinary care as defined by the courts and, without the limiting language, that this was a proximate cause of the accident and the plaintiff could not therefore recover.
We agree that
Bailey
imposes a limitation upon the jury as to what they can consider in determining whether plaintiffs’ excessive speed, if they so find, was a proximate cause of plaintiffs’ injury. The factual pattern of the present case required that the rule of law expressed in plaintiffs’ proposed instruction 9 be given in order to put the relationship of the duties of the favored and disfavored driver in proper perspective.
Defendants also contend that by use of the words “the collision” the proposed instruction constitutes a comment on the evidence, contrary to article 4, section 16 of the state constitution. It is argued that within the commonly accepted meaning of the word there was no “collision” of the two vehicles, and since there was a dispute as to whether defendants’ car was at any time within the east-bound lane and undisputed that plaintiffs’ car was in its proper lane,
reference in the instruction to “the collision” suggests that defendants’ car was in plaintiffs’ lane of travel. The possibility that use of the word “collision” might be misleading was apparently recognized by both court and counsel, as counsel for plaintiffs states in oral argument and in his brief, without contradiction, that in the informal instruction discussion between court and counsel it was agreed that any unfavorable connotations' to be drawn from use of the word “collision” would be satisfied by inserting the word “accident” or “damage”. Under these circumstances, on a new trial the court is not bound to give the proposed instruction in the precise form it was written.
Since we affirm the order of the trial court granting a new trial, it is unnecessary to discuss cross-assignments of error urged by plaintiffs as additional grounds for granting a new trial. Suffice it to say it was proper to give instruction 6 and refuse to give plaintiffs’ proposed instruction 10 for the reasons stated by the trial court.
Order granting a new trial affirmed.
Munson, C.J., and Green, J., concur.
Petition for rehearing denied July 28,1971.
Review denied by Supreme Court August 26,1971.