Frazer v. Downey

529 P.2d 1105, 12 Wash. App. 374, 1974 Wash. App. LEXIS 1140
CourtCourt of Appeals of Washington
DecidedDecember 24, 1974
DocketNo. 887-3
StatusPublished
Cited by2 cases

This text of 529 P.2d 1105 (Frazer v. Downey) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frazer v. Downey, 529 P.2d 1105, 12 Wash. App. 374, 1974 Wash. App. LEXIS 1140 (Wash. Ct. App. 1974).

Opinion

McInturff, J.

Plaintiff appeals a jury verdict denying damages for personal injuries sustained in an automobile accident. Defendant cross-appeals the denial of damages caused his vehicle in the same accident.

In darkness on the morning of November 26, 1971, plaintiff’s vehicle overturned astride the north and southbound lanes of traffic on State Highway 17. The driver of plaintiff’s vehicle, Terry Rocheleau, extricated himself but was unable to remove the plaintiff. A passing southbound truck stopped parallel to the highway just off the fog line and about 45 feet south of the vehicle. The truck’s amber flashers, running lights and low-beam headlights were operating.

When the defendant’s vehicle, traveling north at 55 to 60 m.p.h., crested a hill about 300 yards from the scene of the accident, the driver saw the truck’s headlights and dimmed his lights. At that time the driver realized the truck was parked alongside the road. When he was 150 yards from the truck he saw its amber four-way blinkers flashing but did not see plaintiff’s vehicle until he was about 50 yards from it.1 He applied his brakes and unsuccessfully attempted to go between the overturned vehicle and the truck. Defendant’s vehicle struck both the plaintiff’s vehicle and the truck. The plaintiff, still in the overturned vehicle, was thrown from her car and suffered additional injuries.

Plaintiff assigns error to instruction No. 2 which provides in pertinent part: “Plaintiffs Frazer further claim that the driver of a southbound vehicle stopped on the shoulder of the southbound lane and warned oncoming traffic.” The complained-of portion was taken from plaintiff’s complaint and follows the WPI 20.05 summary of claims. A jury may be instructed in the language from a [376]*376complaint, State v. Hobart, 5 Wn. App. 469, 475, 487 P.2d 635 (1971), as to the issues raised by the pleadings. Murray v. Mossman, 52 Wn.2d 885, 889, 329 P.2d 1089 (1958); Hayden v. Insurance Co. of North America, 5 Wn. App. 710, 714, 490 P.2d 454 (1971). We find no error.

Plaintiff assigns error to instruction No. • 13 which states:

You are instructed that as a matter of law, during hours of darkness, a driver is not required to drive at such a rate of speed that he can stop within the range of visibility of his headlights.

Plaintiff’s assignment is without merit since, at the time she excepted to the instruction, she failed to specifically apprise the judge of the basis for her claim of error. Therefore we need not consider it. Barnes v. Labor Hall Ass’n, 51 Wn.2d 421, 319 P.2d 554 (1957).

Plaintiff assigns error to the giving of instruction No. 13A which states:

You are instructed that a person driving on a highway during hours of darkness, in the absence of a red light to warn him, has the right to assume that the highway ahead is safe for travel and unobstructed.

Plaintiff, relying on Bailey v. Carver, 51 Wn.2d 416, 418, 319 P.2d 821 (1957), contends that a warning can be given by lights other than red ones. Thus the court should have added the language “or other light.”

In construing Bailey, the court in Albert v. Krause, 56 Wn.2d 774, 777, 355 P.2d 327 (1960), stated:

In a later decision, Bailey v. Carver, supra, we held that lights other than red lights may be sufficient in some circumstances to warn of the presence of an obstacle. In that case it was held to be a jury question whether the defendant’s headlights, shining upon or across the highway, were shining in such a manner and direction as to provide a warning to the plaintiff that the road was obstructed.
In this case there were red lights on the truck, but the evidence was that they were off the highway. These were sufficient to warn the decedent of the possibility of an [377]*377obstruction, but not sufficient to warn of its presence. While a red light is a signal of danger, it is also a signal that usually points out the place of danger; and it is not the rule that the driver of 'an automobile must stop his car or check his speed every time he sees a red light on the highway, at the risk of being chargeable with negligence.

Thus, Bailey is distinguishable from the present case. See Martin v. Puget Sound Elec. Ry., 136 Wash. 663, 669, 241 P. 360 (1925). Here, the truck’s headlights and amber flashers did not reveal or warn of the presence of the plaintiff’s vehicle on the road; rather, they revealed only the presence of the truck parked alongside the highway. The lack of perceivable warning is further illustrated by the uncon-troverted fact that defendant did not see plaintiff’s vehicle until he was approximately 50 yards away. Additionally, defendant’s vision was obscured by the headlights of the facing truck.2 We find no error. Albert v. Krause, supra; 3 Blashfield, Automobile Law and Practice § 116.66, at 465 (3d ed. 1965).

The defendant and cross-appellant contends the court erred in failing to instruct the jury to disregard the testimony of the investigating trooper as to his “feelings.” We agree. We set forth the following testimony to illustrate what may follow the asking of an improper question:

[378]*378[Mr. Horton (defense counsel) to Trooper L. L. Hanford]:
Q You didn’t make any charge against Steve Downey?
A No. . . . [On redirect, counsel for plaintiff, Mr. ' Schuster, stated:] Q Now, I think the jury now deserves an explanation as to why you didn’t charge Steve Downey.
Mr. Horton: Your Honor, I don’t think that this is proper. We could only bring the charge in if we could support it by later conviction, which we can.
The Court: He may inquire.
Mr. Schuster:
Q Is there any particular reason why you didn’t charge Mr. Steve Downey?
A Yes, there is.
Q And give that reason to us.
A The reason is that he is a young driver and I felt that he made a mistake out there by traveling too fast for the conditions and I knew that it would probably end up in a lawsuit and we’d be here in the courtroom like we are here today.
Mr. Horton: Your Honor, I object to that and ask it be stricken.
The Court: He may inquire.
Mr. Schuster:
Q Based upon your investigation did you feel that the law had been violated?
Mr. Horton: Now, your Honor, I think his personal feelings—
The Court : Counsel approach the bench.

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Bluebook (online)
529 P.2d 1105, 12 Wash. App. 374, 1974 Wash. App. LEXIS 1140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frazer-v-downey-washctapp-1974.